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In re Crider

STATE OF MICHIGAN COURT OF APPEALS
Nov 19, 2019
No. 348802 (Mich. Ct. App. Nov. 19, 2019)

Opinion

No. 348802

11-19-2019

In re CRIDER, Minors.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Jackson Circuit Court Family Division
LC No. 17-003295-NA Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ. PER CURIAM.

Respondent appeals as of right the order terminating her parental rights to her minor children, KBC, KMC, and KC, pursuant to MCL 712A.19b(3)(j) (reasonable likelihood that children will be harmed if returned to parent). We affirm.

The father of these children also had his parental rights terminated, but he is not a party to this appeal. He initially participated in visitation, but the children reacted poorly to his visits and acted out after the visits ended. He was jailed on multiple occasions, did not continue to visit the children, and did not communicate with the caseworker. Ultimately he advised the caseworker that the children's disposition was contingent upon respondent and his most recent arrest on drug charges resulted in a lengthy prison sentence.

Respondent's two older children, KA and KO, were dismissed from the petition after placement with their biological fathers. The use of the term "children" refers to KBC, KMC, and KC, the subjects of the supplemental petition.

I. BASIC FACTS AND PROCEDURAL HISTORY

Child protective services (CPS) first became involved with the family in 2013, and 15-20 different services were implemented to try and prevent removal. However, the children were removed from the home on an emergency basis in December 2017 because of domestic violence, criminal activity, and drug use. On February 13, 2018, respondent pleaded no contest to the contents of the petition with the caseworker report serving as the factual basis for the plea. On May 8, 2018, a hearing was held, but respondent did not appear. The caseworker represented that respondent had not been in contact for three weeks and could not be located; she had failed to participate in services or visits for nearly a month. Additionally, respondent's probation officer was looking for her. The children's father represented that respondent was in a rehabilitation program in Saginaw. The caseworker noted that although respondent had not communicated, she believed that respondent was attempting a rehabilitation program for the fourth time, but she had left two other programs after only one day.

On July 17, 2018, a hearing was held. The children's guardian noted that the children were doing well in their respective placements and had visits with respondent, but they needed time to settle down after the visits. The guardian expressed concern about the lack of progress by respondent, and he would "strongly be in support of a goal change" to terminate although the agency had not requested it. Counsel for respondent represented that she was drug free for 71 days, engaged in therapy, and took parenting classes. Although he admitted that respondent was "late to the party," he requested another reporting period to continue to make progress. The trial court advised that there "needs to be full engagement."

On September 25, 2018, the guardian disclosed that the children's placements were concerned with their behavior after the visits with respondent. The children were having difficulty sleeping and exhibiting behavior issues at daycare. Respondent presented certificates of completion for programs in parent education, substance abuse treatment, and alternatives to anger. However, at the December 18, 2018 hearing, the guardian represented that the children exhibited "pretty extreme behaviors" sometimes before, but mostly after, the visits. Both the caseworker and the guardian recommended a goal change to terminate parental rights. Respondent objected to the goal change, asserting that transportation issues caused her to miss certain services, but she had purchased a vehicle and was in the process of obtaining a driver's license to remedy the issue. The trial court expressed concern that the children had been in care for over a year, and they exhibited negative behaviors in connection with the visits. The court requested additional information regarding whether the children's visits with respondent were harmful and advised respondent that "any slip ups whatsoever that's going to be the end of the line."

At the hearing on March 12, 2019, the children's guardian advised that respondent's visits with the children were suspended, and the children were doing well and acting normal for their age. The caseworker requested a goal change to terminate respondent's parental rights. Respondent again objected to the goal change and acknowledged that there were conflicting results from her substance abuse tests. The trial court noted that the children's placement in care for 15 months warranted the goal change, but allowed respondent to continue to receive services.

At the termination proceeding held on April 24, 2019, the visitation coach testified that she observed the visits between January 2017 and November 2018. She described the visits as chaotic. In addition to the children, KA and KO were also brought to the visits. KO would yell, scream, and throw toys, actions that directed respondent's attention away from the children. The coach would need to remove the children in order to allow respondent to settle KO down. Additionally, respondent would bring family members to the visits and engage in "facetime" with other relatives to allow them to see the children. The coach opined that respondent was unable to handle all the children during a two-hour visit held one day a week and expressed concern whether she could handle the children on a day to day basis.

Additionally, the children's infant mental health therapist observed parenting visits and expressed concern regarding the impact on the children. After the visits, KBC was dysregulated; she would experience nightmares and cling to her foster mother the following day. She also would not explore her environment or try new things. KMC expressed her anxiety through bodily functions. She would continually soil herself both before and after the visits. Although KMC was toilet trained, she regressed after the visits. Additionally, she experienced nightmares after the visits, and her foster family could not calm her to sleep. Once the visits stopped, KBC and KMC did not experience night terrors. The therapist initially acknowledged that she was not a medical doctor and could not rule out a neurological problem. However, upon further questioning, the therapist noted that the play therapy with the children from the beginning was indicative of a manifestation of trauma.

The caseworker testified that respondent was ordered to complete substance abuse services, drug screens, parenting classes, and a psychological evaluation. Although the psychological evaluation was completed, the caseworker expressed concern regarding the conclusions. In particular, the evaluation noted that respondent presented as structured and rule oriented, but could become volatile and inconsistent in her parenting. There was concern regarding respondent's choice of relationships, and her purported impersonation as a corrections officer to interfere with the children's father's relationship with a new girlfriend. However, respondent was not charged with an offense arising from the incident. Despite the trial court advising that respondent must fully engage and strictly comply, she missed nearly half of the 43 outpatient therapy sessions. She also missed individual and group sessions in the adult recovery court in October, November, and December of 2018. Respondent missed five drugs screens between October 3, 2018, and December 7, 2018, although she was incarcerated for the last screen. Respondent failed to appear for two screens in January 2019. Further, she tested positive for marijuana in November 2018 and January 2019, and the legality of the drug at the time was irrelevant because her recovery did not allow it. Although respondent was referred for domestic violence education in August 2018, she did not begin the services until January 2019. In fact, respondent only began to fully engage in services in the last two to three months. Consequently, the caseworker had asked for a goal change in December 2018, but the court granted respondent another reporting period to participate provided she fully comply with services.

Additionally, after the court advised respondent to completely engage in services, she was charged with retail fraud for an incident occurring on December 31, 2018. Respondent represented that the children were taken for medical appointments, but KBC had a debilitating eye condition that was not addressed until she was removed from respondent's care, and the children's medical clinic indicated that wellness appointments were missed on 16 occasions. Respondent represented that she would attend the pre-operative appointment for KC's ear surgery, but cancelled at the last minute even though transportation assistance was offered. Thus, the caseworker expressed concern regarding respondent's ability to meet the children's physical and psychological needs in light of the trauma assessments performed on KBC and KMC. The caseworker acknowledged that respondent presented certificates of completion of various services and no additional services were recommended. Nonetheless, the caseworker opined that respondent failed to benefit from services. As an example, respondent failed to sign for continued services with the children's counselor despite attachment concerns. The caseworker also noted that respondent had not visited with the children in four months, and any visits would have to occur in a therapeutic setting with family counseling. She opined that respondent did not comply with the court's instruction to engage in strict compliance with the treatment plan in light of the criminal charge, two positive drugs screens, and two missed drug screens. The caseworker had no concerns regarding the children's placements, and the families were willing to provide permanency for the children.

A psychological evaluation of respondent revealed that her father was an abusive alcoholic and her mother began abusing opioids after suffering an injury. Respondent began abusing drugs and alcohol at the age of 13. Her use of marijuana escalated to heroin, Vicodin, methamphetamine, and cocaine. Respondent gave birth to KA at the age of 15 and was in a relationship with KA's father for three years. She entered into a relationship with the father of KO, Kodey Trudell, for two years and continued to co-parent with the father. Respondent was in a relationship with the children's father for five years, but ended the relationship on June 19, 2018. Respondent described the children's father as a "good person," but she acknowledged that he was very controlling and became abusive after the birth of KBC. The evaluation concluded that respondent was self-centered and lacked insight; she particularly did not recognize the impact of her decisions on the children.

A physical altercation in the home caused the children to be removed from respondent's care. There were allegations that respondent assaulted a relative in her home with a baseball bat, the children witnessed the event, and a child was injured on broken glass. However, respondent asserted that the children were taken upstairs before the incident occurred, denied assaulting anyone with a bat, and denied injury to a child. Nonetheless, behavioral health assessments of KBC and KMC disclosed that the young children suffered from post-traumatic stress disorder. KBC struggled with trust issues, displayed aggressive biting behavior after visits, and referred to her father as "scary." While cared for by her parents, KBC suffered from a history of bumps, boils, and abscesses on her body that were attributed to poor living conditions and needed to be surgically removed. Additionally, she suffered from horizontal nystagmus; a vision condition that caused her eye to shake, could lead to blindness, and needed to be corrected. KBC indicated that she did not feel safe with her parents and described living with her mother as "scary." Although only 3 ½ years old, KBC displayed aggressive behaviors, sleep disturbances, anxiety, and fear, and the conditions were worse following parental visits. KMC, then 2 ½ years old, was terrified of men when she came into care and suffered from scattered attachments. She displayed fits of aggression, occasionally wet her pants, and suffered from night terrors, but her behavior improved when placed in foster care. However, after parenting visits, KMC engaged in biting, soiled her pants, woke up multiple times during the night, and had crying fits for hours. She displayed stress, fear, anxiety, and apprehension. Finally, KC was withdrawn, lacked expression for a child his age, and had difficulty sleeping after the visits.

KBC's reaction to assistance in the bathroom caused concern that she may have been the victim of sexual abuse, but police were unable to confirm the suspicion through a forensic interview in light of her young age.

Respondent presented her behavioral health clinical coordinator to offer supportive testimony, and she attested to respondent's participation and completion of services, but also acknowledged attendance issues. The coordinator opined that respondent benefitted from the services, but did not observe respondent with her children. Respondent's probation officer also testified that respondent missed drug screens and was given community service and a day in jail as a sanction by the treatment court. Additionally, respondent violated her probation with the retail fraud charge, but she pleaded guilty to disorderly conduct. Respondent was expected to complete the final phase of the treatment court program in July 2019. Respondent's case manager from treatment court acknowledged that respondent had challenges, such as attendance, but opined there was effort and improvement.

Trudell, the father of KO, testified that he was not involved with respondent as a couple since KO was approximately one-year old. He allowed respondent to have supervised visits with KO every two weeks. Trudell opined that the routine visits were beneficial to KO and helped him with his attention deficit disorders. He opined that respondent was a good parent, and he had no concerns with the visits. Before the agency removal, Trudell stopped allowing respondent to have weekend visits, but testified that respondent was now a completely different individual.

In her brief on appeal, respondent alleges that her post-termination conduct demonstrates her continued progress because she got married and had a strong support system with her "husband," graduated from adult treatment court, and continued to produce negative drug screens. In response, petitioner produced a marriage certificate that respondent married Trudell on May 10, 2019, a mere 16 days after his testimony. This evidence constitutes an inappropriate expansion of the record on appeal, Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002), and although curious, is not dispositive regarding the propriety of the trial court's decision. --------

Respondent testified that after the children were removed, she regressed before she improved because of her struggle with addiction. She was charged with possession of cocaine in May 2018, but engaged in adult treatment court. Respondent identified the different services that she completed and the benefit received. She acknowledged that she missed a number of services, but asserted that it was because of time management issues. Respondent admitted that her visits with the children were chaotic, but claimed that she was never told of any concerns. Respondent testified that her missed drug screens were the result of transportation issues, and she claimed that she had not used illegal drugs after May 7, 2018. She testified that any positive test for marijuana was caused by her proximity to family member use during a health crisis. She lived with an aunt in a home suitable for the children and was employed. Respondent testified that she addressed her addiction and now owned a car, and therefore, her children would be her priority. She denied ever impersonating a corrections officer and claimed that she was never interviewed by the police. She characterized her recent retail fraud charge as a mistake, and she took responsibility for the act. Respondent claimed that she would engage in any action necessary to have the children returned. She opined that termination was not in their best interests because she loved them and could provide for their needs.

The trial court found that the children needed long term care to address the post-traumatic stress disorder, and respondent did not demonstrate the ability to provide that care, particularly when she could not parent the children in a two-hour visit. The trial court further found that termination was in the children's best interest and their current placements provided for their well-being. The trial court expressed it had no confidence that respondent could address her issues in a reasonable period of time. From this decision, respondent appeals.

II. APPLICABLE LAW

"To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). "We review for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence." Id.; see also MCR 3.977(K). Once a statutory ground for termination has been established, the trial court must conclude that termination of parental rights is in the child's best interests before it can terminate parental rights. MCL 712A.19b(5); In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). A trial court's decision regarding a child's best interests is also reviewed for clear error. In re Laster, 303 Mich App 485, 496; 845 NW2d 540 (2013). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." Id. at 491.

III. STATUTORY GROUND

Respondent contends that there was insufficient evidence that the children would be harmed if returned to her care because she participated in and benefitted from the services required by her parent agency agreement. We disagree.

The court found that the following provision of MCL 712A.19b supported termination of respondent's parental rights:

(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:


* * *

(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.

We conclude that the trial court did not clearly err in finding clear and convincing evidence to support this ground for termination. The Department of Health and Human Services (DHHS) has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights, and those efforts include creation of a service plan with the steps that the parent must take to rectify the issues that led to court involvement and to permit reunification. In re Hicks, 500 Mich 79, 85-86; 893 NW2d 637 (2017). DHHS must also provide services to facilitate the child's reunification. In re Mason, 486 Mich 142, 156-159; 782 NW2d 747 (2010). "While the [DHHS] has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App 242 248; 824 NW2d 569 (2012). However, a parent must not only participate in services, she must demonstrate a benefit from the services. In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014).

In this case, the children suffered severe trauma as a result of being placed in a "scary" environment where there was alcohol and substance abuse and domestic violence. Although the young children had difficulty discussing and describing the conditions they witnessed, the children in play therapy disclosed their exposure to domestic violence by their father, described their environment as "scary," and their home environment caused the medical condition suffered by KBC and KMC that required surgical intervention. Respondent's eldest child, KA, requested to move to her father's home. She stated that respondent's home was "noisy, loud, a lot of kids, and a lot of people." KA would have to sleep with the "babies" and take care of them. It was a stressful environment. KA did not feel safe at respondent's home because "there was a lot of yelling and fighting." The children were apparently exposed to the same conditions described by KA. The children appeared frightened of their father and expressed fear that they would be hit. Before visits with respondent, the children acted out both before and after. KBC acted aggressively and could not be calmed by her foster family. KBC and KC had difficulty sleeping. KMC was toilet trained, but regressed and began to soil herself before and after the visits.

To her credit, respondent engaged in and completed services. However, as her counsel confessed, respondent's participation was "late to the party." She did not initially participate in services, and her efforts did not intensify until the caseworker and the guardian sought a goal change to termination of parental rights. However, despite her recent participation, respondent nonetheless missed almost a majority of her therapeutic services, missed or tested positive for marijuana on her recent drug screens, and was charged with retail fraud after the court admonished her to strictly comply with services. Moreover, there was no indication that respondent would be able to parent three young children all under the age of four on a full-time basis when she had difficulty managing the children during a two-hour visit. In light of the record, there was sufficient evidence that the statutory ground for termination, MCL 712A.19b(3)(j), was satisfied by clear and convincing evidence.

IV. BEST INTERESTS

Respondent contends that termination was contrary to the children's best interests in light of her strong bond with them and that she addressed her issues through her completion of services. We disagree.

"[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App at 90. All available evidence should be weighed to determine the child's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The best-interest determination focuses on the child rather than the parent. In Re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016). The factors to consider when determining the child's best interests include the child's bond to the parent, the parent's parenting skills, the child's need for permanency, stability, and finality, the advantages of a foster home over the parent's home, and the child's placement with relatives. Id. If the best interests of the individual children significantly differ, the trial court should consider each child individually when making the determination regarding best interests. In re White, 303 Mich App at 715-716.

We conclude that the trial court did not clearly err in finding that it was in the children's best interests to terminate respondent's parental rights. Respondent had a history with CPS that dated back to 2013, and nearly 20 services were offered to prevent removal. The children were ultimately removed in December 2017, and were in care for nearly a year when respondent began to accelerate her participation in services and programs. However, respondent did not demonstrate a benefit from those services. She had difficulty attending to her children during a two-hour visit. The children suffered from post-traumatic stress disorder as a result of the domestic violence and substance and alcohol abuse that occurred in the home. Their medical needs were not met. Both KBC and KMC suffered from boils and rashes that were attributed to the home environment that had to be surgically removed. KBC had an eye condition that was apparent, but not treated until she was removed from respondent's care. The children regressed as a result of the visits with respondent; they suffered from night terrors, became aggressive, and could not be calmed by their foster parents. Although the children were placed in different homes, the families scheduled visits to permit the children to play with each other. The children were thriving in their current placements. Those families were willing to provide permanency for the children. Although the trial court did not address each child individually in the best interests' determination, there was no indication that the individual children significantly differed. Id.

Affirmed.

/s/ Stephen L. Borrello

/s/ Kirsten Frank Kelly

/s/ Deborah A. Servitto


Summaries of

In re Crider

STATE OF MICHIGAN COURT OF APPEALS
Nov 19, 2019
No. 348802 (Mich. Ct. App. Nov. 19, 2019)
Case details for

In re Crider

Case Details

Full title:In re CRIDER, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 19, 2019

Citations

No. 348802 (Mich. Ct. App. Nov. 19, 2019)