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In re Elliott

STATE OF MICHIGAN COURT OF APPEALS
Nov 26, 2019
No. 348124 (Mich. Ct. App. Nov. 26, 2019)

Opinion

No. 348124

11-26-2019

In re C. D. ELLIOTT, Minor.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court Family Division
LC No. 17-000082-NA Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ. PER CURIAM.

Respondent appeals by right the trial court order terminating her parental rights to her minor child under MCL 712A.19b(3)(c)(i) (conditions that led to the adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if returned). For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

This appeal arises from the termination of respondent's parental rights. Initially, this matter arose as a result of respondent's child testing positive for methamphetamine and amphetamine at birth. During the approximate 19 months that this case was pending, respondent was referred for various services and entered different rehabilitation programs. While respondent missed several of her drug screens for a multitude of reasons, she tested positive on all drug screens performed by caseworkers. Additionally, when she was late for one hearing on the petition to terminate her parental rights, the trial court required that she be immediately tested, resulting in a positive screen for amphetamines.

Respondent was afforded several opportunities to enter in-patient and out-patient treatment programs, yet she was not able to overcome her addiction to methamphetamine. Respondent was also offered mental health services, but again, she failed to address the issues underlying her addiction by not completing the services or being removed form services for failure to actively participate.

Respondent also missed approximately 2/3rds of her scheduled visits with the minor child. Respondent alleged that this was due to petitioner not securing for her adequate transportation. The record reveals the reasons for missing the visits were respondent's drug use and making herself unavailable when rides had been secured for her. The times respondent did attend visitations, she was often late. Evidence revealed that respondent's actions in not making visitations and being late upset the minor child. Also, respondent moved during this case from Washtenaw County to Jackson to Wayne. Additionally, respondent would change her phone number or not answer her phone, making it difficult for petitioner to contact respondent.

Following a lengthy termination hearing, the trial court ruled as stated above. This appeal then ensued.

II. ANALYSIS

On appeal, respondent first argues that the trial court erred in terminating respondent's parental rights because clear and convincing evidence was not presented to support the grounds for termination. Specifically, respondent initially argues that the trial court improperly based its decision to terminate her parental rights on an early childhood development workshop and film that was recently attended by the trial court judge, the attorneys, and others working in the field of childhood development and termination law. We find this argument to be without merit.

Respondent did not object to the trial court's reliance on this information in the trial court. Generally, an issue is only preserved if it is raised before and addressed by the trial court. Steward v Panek, 251 Mich App 546, 551, n 6; 652 NW2d 232 (2002). However, no exception need be taken to a trial court's finding or decision. MCR 2.517(A)(7). See generally Morris v Clawson Tank Co, 459 Mich 256, 275 n 13; 587 NW2d 253 (1998). Further, this Court reviews trial court's findings for clear error. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). Additionally, the petitioner must prove at least one ground for termination. In re Trejo, 462 Mich 341, 351; 612 NW2d 407 (2000); In re Moss, 301 Mich App 76, 88; 836 NW2d 182 (2013).

As previously stated, respondent's parental rights were terminated under MCL 712A.19b(3)(c)(i), (g) and (j), which provide:

(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:


* * *

(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:

(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.


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(g)[], The parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.


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(j) There is a reasonable likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if he or she is returned to the home of the parent.

Effective June 12, 2018; 2018 PA 58.

To properly understand the context of the trial court's statement regarding the film and workshop, it is important that the statements regarding the film and workshop be read within the whole of the trial court's findings. After doing so, it becomes abundantly clear that the trial court was merely providing a summation of what it had learned in a workshop, by stating:

The attorneys in this trial and I were all in the room together on Monday and hearing about child development from the ages of birth to three years old, the rapid brain development that occurs then. Because of that, the neurological effect on the child's development that has long-term effects for that child even into adulthood, based on the nurturing relationship of the caregiver or the lack of the nurturing relationship on the caregiver. This presentation was by Dr. Rosenblum from the University of Michigan Medical School, and it was in -- a training in conjunction with our local DHHS and our Peacemaking Court. . . . And all of us had the opportunity to watch . . . a video called Straight Face. It is an experiment that was conducted showing a child who was slightly over one year old with her mother. They filmed the child responding to the mother and the cues, pointing, smiles, engaging, the connectiveness (sic). The mother then turns her head, comes back and has a straight face; and it's painful to watch, but you see the child going through considerable distress about the inability to engage with their mother and the panic that sets in. And finally the mother can't even take enough of it and immediately engages and the child comes back.

The studies are clear of the effects of children who were raised, for example, in orphanages overseas; and while they may have been safe from external harm, the protocol is they might have been held, I think, a half hour a day . . . . And all -- And the studies show those children had significant delays in their brain development.
Turning to the case before it, the trial court continued:
So, the focus of this is a child at that age and the need that the child has at that age and the ability or the inability of this child's mother to fulfill her
responsibility to that child. We have a collective responsibility to assist her, if she's interested in fulfilling that responsibility. But at the root of it, it is her responsibility first, ours second; and unless she's committed to it, she's not going to kick the addiction.

Saying she does not have a problem as she's here today still testing positive; as she's testing positive on February 21st; as she's testing positive while she's visiting; as she's testing positive or she's using while she's working in employment, that can lead to liability, if things go missing, as we know. This is not a commitment to her addiction.

So, given that, the efforts that were made, in my opinion, were reasonable because if she had ever demonstrated a real commitment, I know that our referee and I would order everything that could be done for her. But it starts with her.

Therefore, I find the evidence clear and convicting, and under the statutory grounds of MCL 712A.19b (3) (c) (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 this child's age.

Second, I find that the evidence is clear and convincing under 712A.19b (3) (g) that the parent, without regard to intent, fails to provide proper care or custody for the child. And I don't think this is a financial consideration. I'm talking about your ability to get yourself clean so that you can engage with that child in a way that's healthy . . . . And there's no reasonable expectation that the parent will be able to provide this care and custody within a reasonable time considering the child's age.


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Finally, I find that there are clear statutory grounds under MCL 712A.19b (3) (j) that there is a reasonable likelihood, based on the conduct or capacity of a child's parent, that the child will be harmed if he or she is returned to the home of the parent.

A child of this age is completely vulnerable. A child can't wait 45 minutes for a parent to appear when they're in need. A parent can't just check out.

The trial court then addressed best interests. It questioned whether the bond could be healthy with respondent's longstanding history of drug use, and stated that respondent's parenting ability was inadequate given that a person using, even using meth, is severely compromised in their ability to make healthy, selfless, responsive decisions to the need of a child of this age, because the addiction to the drug overrides any difficulty or need to respond in the moment, at the time, fully present for a child. The trial court then stated:

Third, as we've indicated, this is a critical time for the development of the brain of this child. The next critical time will be in her teenage years. She needs permanency, stability, and finality because the decisions made now and the care she is given will set the trajectory of whether she will be able to have a healthy life capable of developing relationships with others and feeling productive about herself and being able, therefore, to give to others or whether, in fact, she's unable to achieve that. So she needs that now.

Fourth, at this stage, we have . . . a couple, foster parents, who have been here on time, diligently, politely listening to these proceedings here this morning yet again. And the evidence indicates that this child is receiving exactly the type of nurturing, attention, and care and protection that she needs.

Addressing respondent's arguments, the trial court continued:

We could argue all day about whether she's complied or has not complied with the case service plan or whether it's adequate; but as I said, unless she commits herself and acknowledges this, it doesn't matter what the case service plan is, it doesn't matter how many gas cards are given, it doesn't matter how many cabs we sent to doors, it doesn't matter how many phone calls or reach-out that the fine lawyer has . . . , it doesn't matter whether we offer parent partners or not, it does not matter unless it begins with the person first. That has not begun.

Viewed in context, the trial court's statements regarding the film and the workshop it had recently attended did not provide a basis for the trial court's determination as to the statutory grounds for termination of respondent's parental rights. Rather, in reaching its conclusions, the trial court properly relied on the clear and convincing evidence in the record.

Regarding MCL 712A.19b(3)(c)(i), in reliance on the evidence in the record, the trial court found that respondent had continued to test positive for amphetamines and methamphetamines throughout the entirety of this case, including when she was at visitations and at the final hearing. The trial court found that respondent had not made a commitment to address her addiction, despite petitioner having made reasonable efforts to address her addiction. The record demonstrates that the trial court's findings were correct. While the record reveals that respondent attended a couple of short inpatient treatment programs, there was never a time during the 19-month pendency of this case that respondent successfully addressed her addiction. There was overwhelming evidence that the conditions that led to the adjudication continued to exist and there was no reasonable likelihood that they would be rectified within a reasonable time considering the child's age. Therefore, the trial court did not clearly err in finding clear and convincing evidence to support termination under MCL 712A.19b(3)(c)(i) and accordingly, respondent is not entitled to relief on this issue.

Having concluded that the trial court did not err in termination of respondent's parental rights under MCL 712A.19b(3)(c)(i), we need not consider whether termination was proper under MCL 712A.19b(3)(c)(i), MCL 712A.19b(3)(g) or MCL 712A.19b(3)(c)(j) as petitioner need only prove one ground for termination. In re Trejo, 462 Mich at 351; In re Moss, 301 Mich App at 88. We note however that it is readily apparent from the trial court's ruling and our review of the record evidence that there was no error by the trial court in reaching any of its conclusions regarding termination of respondent's parental rights. As previously stated, the record disclosed that respondent missed 2/3rds of her visitations, was frequently late and never complied with or benefited from her treatment plan. Additionally, by missing the majority of her visitations and being consistently late thereby upsetting the minor child, respondent's actions confirmed the trial court's conclusion that respondent never made the minor child a priority. By never addressing her addiction issues or perceiving the minor child to be a priority, respondent's actions made clear that the minor child would be at serious risk of harm if placed back in respondent's care. --------

Respondent's further argues that based on this Court's ruling in In re HRC, 286 Mich App 444; 781 NW2d 105 (2009), reversal is warranted. Respondent's reliance on In re HRC is misplaced. In that case, the trial court conducted in camera interviews of the children to determine whether termination of parental rights was in their best interests, and then made no statements on the record as to what questions the children were asked or what evidence was elicited, leaving no reviewable record. This Court stated there was no statutory provision or caselaw that would permit a trial court presiding over a juvenile proceeding to conduct an in camera interview to determine the best interests of the children. Therefore, this Court concluded that the trial court clearly erred. Id. at 453-454. In the present case, the trial court merely presented, on the record, a summation of the information that was learned at a recent workshop. As previously determined, the trial court did not rely on the information it had learned at that workshop to reach its conclusion that there was clear and convincing evidence to support the statutory grounds for termination.

Respondent also argues on appeal that MCR 3.923(A) is designed to protect respondent's due process rights, and the trial court's use of the information gleaned from the workshop deprived respondent of her right to fundamental fairness as such usage violated respondent's due process rights. MCR 3.923(A) states:

(A) Additional Evidence. If at any time the court believes that the evidence has not been fully developed, it may:
(1) examine a witness,
(2) call a witness, or
(3) adjourn the matter before the court, and
(a) cause service of process on additional witnesses, or
(b) order production of other evidence.
Hence, MCR 3.923(A) establishes methods by which the trial court may more fully develop the evidence. However, MCR 3.923(A) is inapplicable here for the simple reason that the trial court did not attempt to more fully develop the evidence. As previously stated, the trial court did not rely on the information that was presented in the film or workshop to establish the statutory grounds for termination.

Next, respondent argues that petitioner failed to make reasonable efforts toward reunification. Whether reasonable efforts for reunification have been made is a factual determination. This Court reviews for clear error a trial court's factual findings. In re Mason, 486 Mich at 152. Generally, reasonable reunification efforts must be made to reunite the parent and child unless certain aggravating circumstances exist. Id.; In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012); MCL 712A.19a(2). "When a child is removed from a parent's custody, the agency charged with the care of the child is required to report to the trial court the efforts made to rectify the conditions that led to the removal of the child." In re Plump, 294 Mich App 270, 272; 817 NW2d 119 (2011). However, while petitioner must make reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of a respondent to participate in the services that are offered. Frey, 297 Mich App at 247. In In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005), this Court stated:

[I]t is not enough to merely go through the motions; a parent must benefit from the services offered so that he or she can improve parenting skills to the point where the children would no longer be at risk in the parent's custody. In other words, it is necessary, but not sufficient, to physically comply with the terms of a parent/agency agreement or case service plan. For example, attending parenting classes, but learning nothing from them and, therefore, not changing one's harmful parenting behaviors, is of no benefit to the parent or child.

Here, respondent argues that her case is similar to the facts presented in In re Mason, 486 Mich 142. In Mason, the respondent was incarcerated while the case was pending and petitioner did not give the respondent the opportunity to participate in the hearings by telephone, did not give the respondent copies of the case service plan, did not facilitate the respondent's access to services or agencies, and never spoke to the prison social workers about the respondent's need for services. The caseworker admitted that the respondent could not comply with the plan as written while in prison. Contrary to those facts, here, three different caseworkers testified about the efforts they undertook toward reunification.

The record reveals that caseworkers began working with respondent immediately after the child was placed in foster care. However, respondent frustrated the efforts undertaken by caseworkers either by making herself unavailable to case workers or failing to follow through with any of her treatment plan directives.

Respondent moved to Jackson County after the child's birth and placement in Washtenaw County. Respondent never asked for this case to be transferred to Jackson County. Rather, respondent told her caseworker that she would work with a treatment provider called Born Free in Jackson County. The caseworker spoke with a representative at Born Free who stated that respondent had contacted them and attended an orientation meeting, but there was never any follow-up information. Respondent said that she was uncomfortable going to AA/NA meetings, so the caseworker did not give her a list for Jackson County. At the termination hearing, respondent presented a few sign-up sheets for AA meetings. The trial court stated that it had checked some of the names and phone numbers, and did not find those documents to be credible.

Respondent informed her caseworkers that she had problems with transportation because she did not have a driver's license. Respondent's caseworkers addressed respondent's problems with transportation by providing her with gas cards and a parent partner to drive respondent to visitations. Caseworkers also arranged for a taxi cab to pick her up at her residence in Jackson County and drive her to visits and back. However, twice when the cab arrived to pick up respondent she did not come out and the service was discontinued. In addition, a caseworker personally provided transportation by taking the infant to Jackson County and back, and once the caseworker picked up respondent. Respondent was told numerous times to timely inform the caseworkers when she had transportation problems so that they could accommodate her, but she failed to do so. Despite all the help provided, respondent was irresponsible about attending the visitation.

Respondent requested that visitation be held at her mother's home, where respondent was residing at the time. A caseworker went out to the home and assessed it. The caseworker found several issues that needed to be addressed and informed both respondent and her mother. While the caseworker was told those issues would be fixed, respondent never requested that the caseworker go back and reassess the home.

Respondent was given "countless packets" with contact information for inpatient programs and resources, Section 8 housing, Michigan Works for employment, and Cognitive Behavioral Therapy. Respondent did not follow through with any of the resources that were provided to her. Each caseworker signed respondent up for drug screens at Forensic Fluids. Respondent had contact information for every nearby location, but throughout this case, she did not submit to any of the required drug screens. Several face-to-face swabs were taken by the workers at visitation, and all were positive for amphetamines and methamphetamines, and one screen included cocaine. After a few missed appointments and an early discharge for an allergic reaction, respondent finally entered the inpatient program at Henry Ford Allegiance, but was discharged before the completion of the program for failure to follow the rules and regulations and argumentative and hostile behavior. Later, respondent attended the Sacred Heart two-week inpatient program. Although there may have been an insurance issue with continuing further, when the caseworker called Sacred Heart, she was told that if they had thought respondent needed more time, they would have called petitioner. Sacred Heart recommended three NA/AA meetings a week, an outpatient program, and attendance at all parenting times. Sacred Heart set up an outpatient program for respondent and the caseworker arranged for petitioner to pay for any inpatient program, but neither happened. Respondent reported that "Access" did not return her calls. The caseworker followed up with Access and was assured that if respondent called again they would engage with her. This information was given to respondent, but she never called them back. When questioned about her positive screens, respondent denied that she was an addict and denied that she had a problem.

Given the testimony and evidence of the efforts made by the caseworkers for reunification, it is disingenuous for respondent to argue that she was denied reasonable efforts to obtain services to provide for reunification. The evidence clearly reveals that petitioner made continued and concerted efforts toward reunification. The evidence clearly reveals that despite these efforts, respondent never accepted her responsibility as a parent. Respondent never demonstrated that her child was a priority. She made no attempt to stop using methamphetamines, and the evidence was very clear that she was not ready to make that attempt. After 19 months of providing services toward reunification, there was no reasonable likelihood that she would be in a position to move to unsupervised visitation within a reasonable time. Based on this record, the trial court did not clearly err in finding that petitioner made reasonable efforts to help respondent rectify the conditions that led to the removal of the child so that she could be reunified with her child.

Affirmed.

/s/ Stephen L. Borrello

/s/ Kirsten Frank Kelly

/s/ Deborah A. Servitto


Summaries of

In re Elliott

STATE OF MICHIGAN COURT OF APPEALS
Nov 26, 2019
No. 348124 (Mich. Ct. App. Nov. 26, 2019)
Case details for

In re Elliott

Case Details

Full title:In re C. D. ELLIOTT, Minor.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 26, 2019

Citations

No. 348124 (Mich. Ct. App. Nov. 26, 2019)