Opinion
No. 339115 No. 339116
01-23-2018
In re DOTY, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 15-520151-NA Before: CAMERON, P.J., and SERVITTO and GLEICHER, JJ. PER CURIAM.
In Docket No. 339115, respondent mother appeals as of right the order terminating her parental rights to her son (the minor child), under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child will be harmed if returned to parent). In Docket No. 339116, respondent father appeals as of right the same order terminating his parental rights to the minor child under the same statutory provisions. We affirm in both cases.
I. Docket No. 339115
A. REASONABLE EFFORTS TO ACCOMMODATE DRUG ADDICTION
On appeal, respondent mother first argues that DHHS did not make reasonable efforts to provide her with appropriate services pursuant to the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. We find that she waived this issue.
"Whether the ADA has any effect on termination of parental rights proceedings . . . presents a question of law that [this Court] review[s] de novo." In re Terry, 240 Mich App 14, 23-24; 610 NW2d 563 (2000). However, because this issue was not preserved for appeal, it is reviewed for plain error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Under this standard, respondent mother may only obtain relief if (1) error occurred, (2) the error was plain, i.e., clear or obvious, (3) and the plain error affected her substantial rights. Id. The Court in In re Terry provided that failure to raise a claim that DHHS is in violation of the ADA when a treatment plan is adopted, or shortly thereafter, constitutes waiver of the claim on appeal:
Any claim that the FIA [family independence agency] is violating the ADA must be raised in a timely manner, however, so that any reasonable accommodations can be made. Accordingly, if a parent believes that the FIA is unreasonably refusing to accommodate a disability, the parent should claim a
violation of her rights under the ADA, either when a service plan is adopted or soon afterward. The court may then address the parent's claim under the ADA. Where a disabled person fails to make a timely claim that the services provided are inadequate to her particular needs, she may not argue that petitioner failed to comply with the ADA at a dispositional hearing regarding whether to terminate her parental rights. In such a case, her sole remedy is to commence a separate action for discrimination under the ADA. At the dispositional hearing, the family court's task is to determine, as a question of fact, whether petitioner made reasonable efforts to reunite the family, without reference to the ADA.Respondent mother's trial attorney did not argue that respondent mother had a drug addiction disability under the ADA that was not properly accommodated by DHHS until closing argument at the evidentiary hearing on the petition to terminate parental rights. Therefore, this issue is waived on appeal. In re Terry, 240 Mich App at 27.
In the present case, respondent did not raise a challenge to the nature of the services or accommodations offered until her closing argument at the hearing regarding the petition to terminate her parental rights. This was too late in the proceedings to raise the issue. The time for asserting the need for accommodation in services is when the court adopts a service plan, not at the time of a dispositional hearing to terminate parental rights. [In re Terry, 240 Mich App at 26-27.]
Had the issue not been waived, we would find no violation. Respondent mother requested an inpatient referral for her drug addiction and the DHHS provided it. Respondent mother refused to go to the referred facility. When she went into a second facility, she left after only a few short days. She also failed to comply with the variety of other drug addiction services offered. Thus, respondent mother's claim that there was no accommodation made for her drug addiction disability is, in reality, a false allegation based on her own failure to take advantage of the accommodations and services provided.
B. REASONABLE EFFORTS TO PLACE MINOR CHILD WITH A RELATIVE
Respondent mother next argues that DHHS did not make reasonable efforts to place the minor child with a relative. We disagree.
The petitioner in a termination of parental rights matter must make reasonable efforts to rectify conditions, to reunify the family, and to avoid termination of parental rights. In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). However, the trial court is not required to place a child with relatives in lieu of terminating parental rights. In re IEM, 233 Mich App 438, 453; 592 NW2d 751 (1999), overruled on other grounds In re Morris, 491 Mich 81, 121; 815 NW2d 62 (2012). "If it is in the best interests of the child, the probate court may properly terminate parental rights instead of placing the child with relatives." Id.
The record does not support respondent mother's argument that DHHS failed to make reasonable efforts to place the minor child with a relative. The maternal grandmother was identified as a possible placement as early as the preliminary examination. However, her background check did not clear, so her home was not assessed at that time. When the preliminary hearing resumed a month later, DHHS was investigating whether the maternal grandmother could be removed from the central registry so she could be a possible placement, and DHHS asserted that it had not received information for the paternal grandmother as a possible placement. In September 2015, the first caseworker on this matter, Judy Truong (Truong), indicated that the paternal grandmother was an unsuitable placement because she lived in Jackson, Michigan, would have issues transporting the minor child to Livonia, Michigan, for visitation, and did not provide documentation of her income, bills, or insurance. The maternal grandmother was an unsuitable placement because she did not provide this documentation, her partner and his child who lived in the same home were not interviewed, and with her work schedule she could not accommodate watching the minor child.
In January 2016, Truong reported difficulty contacting the paternal grandmother. Truong assessed her home in Livonia, but she resided in Jackson for most of the week. Truong assessed the Jackson home on March 15, 2016. The paternal grandmother was denied placement because of her parenting style. She believed in corporal punishment and spanking, and did not want the minor child under strangers' care, but she did not provide any information for alternative care for when she would be at work. Truong also contacted the maternal grandmother regarding placement, but still needed to interview her partner and his child, and respondent mother expressed concern with placing the minor child there. The paternal grandmother eventually moved to Livonia, and her home was assessed, but she was still denied placement due to her belief in spanking, which is against the foster care agency's policy. In April 2017, Truong received a long inappropriate email from the paternal grandmother stating that she would not need state assistance if the minor child was placed in her care.
When the trial court considered the minor child's best interests, a subsequent caseworker assigned to the case, Teresa Williams Gilchrist (Gilchrist), testified that she did not believe it was in the minor child's best interests to be placed with the paternal grandmother because she would let the minor child be in respondent father's presence unattended, and respondent father's parenting time was still supervised. Therefore, the record evidence demonstrates that DHHS made reasonable efforts to place the minor child with a relative throughout these proceedings.
C. STATUTORY BASIS
Respondent mother next argues that the trial court erred when it terminated her parental rights to the minor child pursuant to MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j). We disagree.
The trial court must find that a statutory ground for termination is established by clear and convincing evidence in order to terminate parental rights. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016) (citations omitted). A trial court's ruling that a statutory ground for termination was established is reviewed for clear error. Id. at 409. See also MCR 3.977(K). " 'A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.' " In re Schadler, 315 Mich App at 409, quoting In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
A trial court may terminate a respondent's parental rights under MCL 712A.19b(3)(c)(i) if 182 days have passed since the initial disposition order, and the trial court finds by clear and convincing evidence that "[t]he 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." As the order of disposition was entered on September 30, 2015, more than 182 days passed when the trial court found that statutory grounds existed pursuant to MCL 712A.19b(3)(c)(i) on May 5, 2017. The minor child was brought into care on June 25, 2015, because he was born testing positive for opiates and experienced symptoms of withdrawal. Respondent mother tested positive upon giving birth, and admitted regularly using drugs during her pregnancy, including one week before giving birth. The court accepted these admissions made by respondent mother at the adjudicatory hearing, prior to asserting jurisdiction over the minor child. Based on respondent mother's history of drug abuse, her treatment plan contained many services pertaining to addressing this problem: parenting classes, individual therapy, a substance abuse assessment, substance abuse therapy, weekly random drug screens, and narcotics anonymous (NA) meetings. However, throughout the proceedings, respondent mother was unable to fully comply with the requirements of her treatment plan or abstain from drug use.
Respondent mother was oftentimes provided resources for drug rehabilitation facilities. Respondent mother claimed that the numbers she was given for these facilities were incorrect, but they were not. Moreover, respondent mother refused to go to treatment at Positive Images because it was in Detroit, even though it was funded by DHHS. Respondent mother entered inpatient treatment at Oakdale in October 2016, but left the program only a few days later. Respondent mother claimed she detoxed on her own with her aunt; however, she continued to test positive for drugs. The substance abuse assessment that respondent mother completed after multiple referrals recommended that she participate in inpatient and outpatient treatment, submit random drug screens, and test negative. However, respondent mother did not comply with these recommendations as she still tested positive throughout the remainder of the proceedings. Respondent mother, in fact, tested positive for heroin, morphine, and methadone throughout April of 2017. The evidentiary hearing on the petition for termination concluded on May 5, 2017.
Therefore, the trial court did not err when it determined that statutory grounds existed pursuant to MCL 712a.19b(3)(c)(i) as respondent mother's drug abuse was the major reason why the minor child came into care, and almost two years later, respondent mother continued to test positive for drugs. The trial court stated, "it has become quite clear that substance abuse is still a problem as of - to this date, as to both [respondent mother] and [respondent father]; as we have had recent drug screens just recently - in the last 10 or so days - which were positive for heroin, morphine, and methadone," and the court would be "playing Russian roulette with a child, to allow the child to be placed with the parents full time, knowing full well that there is still ongoing issues[s], particularly . . . with heroin." We agree.
The trial court only needs to find clear and convincing evidence of one statutory ground in MCL 712A.19b(3) to terminate parental rights. In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). Thus, termination of respondent mother's parental rights was appropriate under MCL 712A.19b(3)(c)(i). However, the other statutory grounds that respondent mother raises on appeal will be discussed herein.
A trial court may terminate a respondent's parental rights under MCL 712A.19b(3)(g) if the trial 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." "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, 710; 846 NW2d 61 (2014).
Respondent mother's drug use prevented her from properly caring for the minor child, and her continued drug use will prevent her from caring for the minor child in the future. As stated above, the minor child was placed into care in June 2015. Respondent mother was offered a treatment plan in October 2015 containing many services related to her drug problem. However, over the two years that these proceedings took place, respondent mother continued to test positive for drugs. She rarely attended her weekly random drug tests, but rather, consistently tested positive at the scheduled date and time that she visited the minor child. In addition, she tested positive while the evidentiary hearing on the permanent custody petition took place, despite warnings from the court that drug use continued to be the biggest barrier to being reunited with her son. Although respondent mother was reported to have appropriate visits with the minor child, this does not overcome the fact that she tested positive for drugs at such visits, and may have been under the influence during said visits. Given the length of time that respondent mother had to become drug free, there is no reasonable expectation that she will stop using drugs within a reasonable amount of time. Her drug dependency will continue to impair her ability to provide proper care and custody of the minor child. There was thus clear and convincing evidence on which to terminate respondent mother's parental rights pursuant to MCL 712A.19b(3)(g).
A trial court may terminate a respondent's parental rights under MCL 712A.19b(3)(j) if the trial court finds by clear and convincing evidence 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." In addition, "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.
Based on respondent mother's history of drug abuse, her treatment plans contained many services pertaining to addressing this problem: parenting classes, individual therapy, a substance abuse assessment, substance abuse therapy, weekly random drug screens, and narcotics anonymous (NA) meetings. However, throughout the proceedings, she was unable to fully comply with the requirements of her treatment plan or abstain from drug use. By the first dispositional review and permanency planning hearing, respondent mother was terminated from the substance abuse assessment, family and individual therapy, and parenting classes, for failure to comply. Throughout the course of the proceedings, she rarely attended her random weekly drug screens. Rather, she was screened when she attended parenting time, and oftentimes tested positive for methadone, opiates, Tramadol, and/or THC, even though this was the scheduled date and time for her to visit the minor child. On numerous occasions, the drug screening agency used by DHHS contacted DHHS regarding the unsafe levels found in respondent mother's system.
Respondent mother clearly continued to have problems with drug addiction throughout the course of these proceedings. She tested positive on multiple occasions while the evidentiary hearing on the petition for permanent custody took place. Given respondent mother's problems with drugs, there is a reasonable likelihood that the minor child will be harmed if he is returned to respondent mother's care. The minor child was born addicted to drugs; should he be exposed to further drug use by respondent mother, he could accidentally come into contact with or ingest illegal substances. In addition, the minor child could be left unattended should respondent mother be arrested for her use of the illegal drugs. Although respondent mother had appropriate visits with the minor child, the visits were always supervised. And, respondent mother may or may not have been under the influence of drugs when she attended these visits, as she often tested positive for drugs when she arrived. There is a reasonable likelihood that the minor child could be harmed if he was in respondent mother's care, with no one else there to supervise, while she is under the influence of drugs.
There is clear and convincing evidence that the minor child would be harmed if he was returned to respondent mother's care. The trial court thus did not err in terminating her parental rights to the minor child under MCL 712A.19b(3)(j).
D. BEST INTERESTS
Respondent mother next argues that the trial court erred in concluding that it was in the child's best interests to terminate her parental rights. We disagree.
A trial court must order the termination of a respondent's parental rights if the trial court finds by a preponderance of the evidence based on the record as a whole that termination is in the child's best interest. In re White, 303 Mich App at 713. This Court reviews the trial court's determination of a child's best interests for clear error. Id.
MCL 712A.19b(5) provides, "[i]f the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." The prosecution must prove that termination is in the child's best interest by a preponderance of the evidence. In re Schadler, 315 Mich App at 408. A trial court must weigh all of the evidence in making a best interest determination. In re White, 303 Mich App at 713. This includes many factors, including " '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,' " as well as "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." Id. (citations omitted).
It was in the minor child's best interests to terminate respondent mother's parental rights. MCL 712A.19b(5). The record demonstrates that the minor child was bonded to respondent mother as he reacted positively to her at visitation and looked to her for love and protection. Respondent mother's parenting time visits were appropriate and went well. Regardless, respondent mother's continued use of illegal drugs seriously calls into question her ability to parent the minor child. The minor child needs permanency, stability, and finality. He has been in foster care since he was born and was thriving in the home of the foster parents who wish to adopt him. It took respondent mother almost two years to come into even partial compliance with her treatment plan, at best. She was referred for certain services multiple times before they were completed, months after they were initially referred. The biggest concern of the trial court was respondent mother's continued drug use, and respondent mother did not come into full compliance with this aspect of her treatment plan. She did not complete an inpatient drug rehabilitation program, even though it was ordered by the court. She almost never completed a random drug screen; rather, she was tested at parenting time, and consistently tested positive indicating that she may have been under the influence of drugs when she was supposed to be parenting the child. Clearly, she cannot put her child's needs first.
Respondent mother did not comply with other aspects of her treatment plan as well, even though she was given nearly two years to do so. Although she regularly attended parenting time, she missed some visits on occasion. Respondent mother had not completed individual or family therapy by the end of the evidentiary hearing. And, respondent mother never obtained employment or a valid source of income. Therefore, there was clear and convincing evidence that it was in the minor child's best interests to terminate the parental rights of respondent mother.
II. Docket No. 339116
A. CONSTITUTIONAL RIGHT TO PARENT
Respondent father argues that the trial court violated his constitutional right to parent the minor child by terminating his parental rights. We disagree.
A claim of a violation of constitutional rights to substantive or due process is typically reviewed de novo. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). However, because respondent father failed to preserve this issue by raising it in the trial court, his claim is reviewed for plain error. Id. Respondent father may only obtain relief if "(1) error . . . occurred, (2) the error was plain, i.e., clear or obvious, (3) and the plain error affected substantial rights." Carines, 460 Mich at 763.
Respondent father is correct that he has a constitutional right to parent the minor child, and this right "does not evaporate simply because [he has] not been [a] model parent[ ] . . . ." Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). However, a parent's right to control the custody and care of his or her children "is not absolute, as the state has a legitimate interest in protecting 'the moral, emotional, mental, and physical welfare of the minor,' and in some circumstances 'neglectful parents may be separated from their children.' " In re Sanders, 495 Mich 394, 409-410; 852 NW2d 524 (2014), quoting Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551 (1972). When the trial court finds clear and convincing evidence establishing at least one ground for termination pursuant to MCL 712A.19b(3), "the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). At that point, a "parent's interest in the companionship, care, and custody of the child gives way to the state's interest in the child's protection." Id. at 356. Therefore, respondent father's constitutional right to parent the minor child was not violated if the trial court correctly found by clear and convincing evidence that there was a statutory ground for termination. Id.
Respondent father has not argued on appeal that the trial court erred in finding statutory grounds to terminate his parental rights, therefore abandoning the issue. Berger v Berger, 277 Mich App 700, 712; 747 NW2d 336 (2008). Thus, respondent father's argument regarding his constitutional right also fails because his liberty interest no longer included the right to custody and control of the minor child after the trial court found statutory grounds to terminate his parental rights. In re Trejo, 462 Mich at 355. Briefly addressing the statutory grounds for purposes of thoroughness, we conclude that the trial court did not err in finding statutory grounds to terminate respondent father's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j).
B. STATUTORY GROUNDS
The trial court did not err in finding by clear and convincing evidence that the conditions that led to adjudication continued to exist and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the young age of the minor child. MCL 712A.19b(3)(c)(i). As previously indicated, the minor child was brought into care on June 25, 2015, because he was born testing positive for opiates and experienced withdrawal symptoms. Respondent mother tested positive upon giving birth, and admitted regularly using drugs during her pregnancy, including one week before giving birth. Respondent father also tested positive for opiates both shortly before and after the minor child's birth. Due to respondent father's history of drug abuse, his treatment plan focused on addressing this problem and consisted of parenting classes, individual therapy, a substance abuse assessment, substance abuse therapy, weekly random drug screens, and narcotics anonymous (NA) meetings. However, throughout the proceedings, respondent father failed to comply with the requirements of his treatment plan, or abstain from drug use.
Respondent father did not attend the required random drug screens, and tested positive for methadone and opiates when he was screened at parenting time. In fact, the level of heroin in respondent father's system was so high on one occasion "that he should [have] been dead." He also tested positive for cocaine in May 2016, and for methadone and heroin in March 2017. Respondent father tested positive for heroin, morphine, and methadone throughout April 2017. Respondent father testified that he did not attend an inpatient treatment program because Truong gave him wrong numbers and the facilities would not take him due to the amount of methadone he was on. He was also denied funding for inpatient treatment by Wayne County because his methadone level was too high. He claimed to be on methadone for an outpatient treatment program through Ultimate Solutions. However, he did not have active prescription for methadone by the end of the proceedings. In addition, respondent father testified on the last day of the evidentiary hearing that he was addicted to opiates and last used opiates the week prior.
Respondent father (and mother's) drug abuse was the major reason why the minor child came into care, and almost two years later, respondent father continued to test positive for drugs. This was sufficient to find clear and convincing evidence for termination under MCL 712A.19b(3)(c)(i).
Clear and convincing evidence for termination was also present under MCL 712A.19b(3)(g), that respondent father failed to provide proper care and custody for the minor child, and that there was no reasonable expectation that he would provide proper care and custody to the minor child within a reasonable amount of time. Respondent father's drug use prevented him from caring for the minor child, and his continued drug use will prevent him from caring for the minor child in the future.
The minor child was placed into care shortly after his birth. Respondent father was offered a multitude of services related to his drug addiction, well aware that it was the key factor in his child's placement. However, over the two years that these proceedings took place, respondent father continued to test positive for drugs. He very rarely attended his weekly random drug tests, but rather, consistently tested positive at the scheduled date and time that he visited the minor child. He was still testing positive during the evidentiary hearing on the permanent custody petition, despite warnings from the court that drug use continued to be the biggest barrier to being reunited with his son. Given the length of time that respondent father had to become drug free, there is no reasonable expectation that he will stop using drugs within a reasonable amount of time. His drug dependency will continue to impair his ability to provide proper care and custody of the minor child.
There was clear and convincing evidence, based on the conduct or capacity of respondent father, that the child will be harmed if he or she is returned to his home. MCL 712A.19b(3)(j). The minor child was born addicted to drugs and respondent father remains addicted to drugs. While his visits with the child were appropriate, they were always supervised. And, it cannot be ignored that respondent father almost always tested positive for illegal substance before these visits. Respondent father has not yet grasped how to put the needs of the child before his own and the risk of putting a young child in the care of one who continues to struggle with addiction to heroin is high.
Finally, the best interests of the minor child supported termination of respondent father's parental rights. It is true that the minor child was bonded to respondent father and reacted positively to him at visitation. Respondent father's parenting time visits were appropriate. Regardless, respondent father's continued use of illegal drugs makes it doubtful that he could properly parent the minor child. Again, the minor child needs permanency, stability, and finality. He has been in foster care since he was born and thriving in the care of foster parents who wish to adopt him. Respondent father took almost two years to come into partial compliance with his treatment plan despite being referred for certain services multiple times. The biggest concern of the trial court was respondent father's continued drug use, and respondent father never came into full compliance with this aspect of his treatment plan. He did not complete a random drug screen, consistently tested positive for drugs before parenting time, and failed to attend inpatient drug treatment. Therefore, there was clear and convincing evidence that it was in the minor child's best interests to terminate the parental rights of respondent father.
Affirmed, in both cases.
/s/ Thomas C. Cameron
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher