Opinion
No. 333724 No. 333725
03-21-2017
In re ELLIOTT/MASSIE, Minors.
UNPUBLISHED Monroe Circuit Court Family Division
LC No. 14-23202-NA Before: TALBOT, C.J., and MURRAY and BOONSTRA, JJ. PER CURIAM.
In this consolidated appeal, respondent-mother appeals by right the trial court's order terminating her parental rights to the two minor children, NE and EM, while respondent-father appeals that same order terminating his parental rights to EM. We affirm in both docket numbers.
See In re Elliott/Massie Minors, unpublished order of the Court of Appeals, issued July 12, 2016 (Docket Nos. 333724, 333725).
NE's father's rights were terminated in 2012 in a separate action occurring before these proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
As stated, respondent-mother is the mother of two minor children, NE and EM. The children lived with her in 2014. On March 28, 2014, petitioner filed a petition seeking removal of the children from respondent-mother's home. The petition alleged that the children were previously removed from respondent-mother's care from 2009 to 2012 as a result of child neglect proceedings. The petition further alleged that in October 2013, Child Protective Services (CPS) investigators substantiated a report that respondent-mother was using heroin and stealing to support the habit, and that respondent-mother admitted to using heroin and marijuana. The petition also alleged that respondent-father was currently incarcerated, that EM had been removed from his care in 2009 as a result of child neglect proceedings, and that respondent-father had not been actively involved in EM's life since January 2013. The children were removed from respondent-mother's home that same day and placed with Sarah Miller, their maternal grandmother.
In May 2014, respondent-father entered a plea admitting to the allegations in the petition that he was incarcerated on EM's removal date, that the children were removed in 2009, and that he had not been actively involved in EM's life since January 2013. The remainder of the allegations against respondent-father were dismissed and respondent-father's disposition date was set. Respondent-mother did not plead to the allegations in the petition and a jury trial was held on her adjudication in June of 2014. The jury returned a verdict that the court had jurisdiction over the minor children. Respondent-mother appealed that verdict to this Court. We upheld the jury's verdict, stating the facts that supported the verdict as follows:
See In re Elliot, unpublished opinion per curiam of the Court of Appeals, issued March 24, 2015 (Docket No. 322742).
The proofs showed by a preponderance of the evidence that respondent was unable to provide proper or necessary support for her children or that respondent's home was an unfit place for them to live by reason of neglect, criminality or depravity.
Respondent has a significant prior history with Children Protective Services. It was undisputed that she was heavily addicted to heroin which led to the first removal of her children in August 2009. She was incarcerated on September 27, 2009, and provided with services in 2011 after her release. Services included a psychological evaluation, individual therapy, drug screens, parenting classes, substance abuse counseling, employment and education training. Respondent completed services and her children were returned to her on March 5, 2012, and the case was closed. Afterwards, she did not participate in any support services.
In October 2013, a new case was opened following a complaint that respondent was abusing heroin and stealing to support her drug habit. At the end of November 2013, respondent reportedly stopped using heroin but admitted to using marijuana. She was again provided with services, including random drug screens that were negative. Shortly after that case closed in mid-March 2014, a complaint was received indicating that respondent's young children were smoking marijuana. During a forensic interview, respondent's son disclosed in very specific detail how he had smoked marijuana in respondent's presence. He also stated that his five-year-old brother had also tried marijuana. The children were again removed from respondent's custody and petitioner filed a protective proceedings petition on March 28, 2014. The primary concerns in the petition were respondent's apparent mental instability and her admitted drug use, along with her son's allegations. At the adjudication hearing, respondent's son provided credible testimony that he had smoked marijuana in respondent's presence. He described smoking "weed" with his mother, noting that the "weed" was placed in a glass pipe and lit with a lighter and was sometimes in paper, like a cigarette. He said that he had to suck in and blow out and that he did not like it because it made him cough. Respondent allegedly offered him the "weed" when he felt sad. The
jury also heard respondent testify that she not only used marijuana but considered it to be a "holy plant" and a "spiritual sacrament." She stated that she would continue to use marijuana even though she admitted that it was wrong in the eyes of the law. Although she denied ever smoking in front of the children or giving them marijuana, respondent stated: ". . . I can't make an assessment based on whether or not I think that the plant would be bad for the children because I don't think that they found any evidence that it would be bad for the children."
In addition to the evidence that respondent's home was unfit for the children due to the exposure to substances, there was a preponderance of the evidence that respondent was unable to adequately provide for the children because of financial instability. Respondent testified that she had been unemployed since June 2012 because of medical issues. She had been financially dependent on her fiancé until the relationship ended on March 28, 2014, at which point respondent had no income to support herself and her children. Her rent was overdue and she had received an electricity shut-off notice. Water to the house had been shut off due to nonpayment. Respondent was without a clear plan of how she would provide for her children. Accordingly, there was no clear error in the jury's determination that a statutory ground was established.
Dispositional hearings were held for both respondents, respondent-father's in May 2014 and respondent-mother's in July 2014. Respondent-father appeared by phone at the May 2014 hearing as he was currently residing at the Elmhurst Building, an inpatient substance abuse center in Detroit. Respondent-father was given an interim case service plan that included basic requirements such as signing releases of information and compliance with his parole.
At the July 2014 hearing, respondent-mother was given a case service plan that required, among other things, that she obtain a legal source of income and suitable housing, participate in a substance abuse assessment, participate in a psychological evaluation, submit to regular and random drug screens under petitioner's direction, remain in contact with petitioner, complete a parenting class, participate in supervised parenting time, and maintain her sobriety. Respondent-father was also given a complete case service plan that included the same requirements as respondent-mother (apart from parenting time) and also included attendance at AA/NA meetings and resolving all pending criminal matters including parole violations. Respondent-mother had been attending supervised parenting time, which was continued, while respondent-father was awarded supervised parenting time but such time was suspended pending proof of his resolution of outstanding criminal charges. The trial court stated that the goal was reunification.
Over the next approximately 20 months, respondents complied with portions of their case service plans. For example, respondent-mother did attend the majority of her parenting time sessions, participate in the required assessments, and submit to drug screens before her parenting time visits. However, respondent-mother also made threats, both orally and by text message, to several employees of petitioner, a court-appointed special advocate for the children, her therapist, Kim Lewis (which caused Lewis to cancel further individual therapy), school officials at her children's school, and Sarah Miller, the children's maternal grandmother, and additionally made threats to "blow up" the Department of Health and Human Services (DHHS) building. Respondent-mother frequently violated a court order not to have contact with Miller. Further, employees of petitioner reported that respondent-mother was often aggressive and confrontational toward them during parenting time visits. Respondent-mother also tested positive for heroin, cocaine, and marijuana in October 2015, and shortly thereafter entered Sacred Heart, an inpatient treatment program. She completed the program and briefly moved into a "three quarter house" known as Hollywood House in Roseville, Michigan, before leaving the house because she was unable to pay rent. Respondent-mother moved frequently during this time period and stayed for a time in a Salvation Army homeless shelter. She did not keep her case workers informed of all of her new addresses. Respondent-mother worked sporadically until September of 2015 and was not employed after that date. Respondent-mother failed to complete parenting classes, although she did complete a portion of the curriculum.
Respondent-father was arrested several times for parole violation during this period, including several arrests for failing drug screens. He only worked sporadically during this period, with his last reported employment being in January 2015. He did not maintain stable housing during this period. He never submitted to any required evaluations. Respondent-father did not contact his caseworker or any employee of petitioner from April 2015 to October 2015. He entered Sacred Heart twice in 2015 after relapsing on heroin, completing the program the second time. Respondent-father was arrested in October 2015 on uttering and publishing charges, of which he was ultimately convicted on January 22, 2016. He only completed two drug tests while not incarcerated; one was negative and one was positive for cocaine.
In February 2016, petitioner filed a supplemental petition seeking termination of respondents' parental rights, alleging that statutory grounds for termination existed under MCL 712A.19b(3)(c)(i) and (ii), (g), and (j). A three-day termination trial was held in April 2016. In addition to evidence of respondents' partial non-compliance with their case service plans, Lewis testified that she had been present during several visitations. She testified that she had observed respondent-mother allow EM to play a piano on a stage at his school during an inappropriate time, and that respondent-mother had held NE down and forced a cupcake into his mouth during a visit after NE stated that he did not want to eat it. She also testified that NE (the older child) had expressed a preference not to live with his mother and was often "indifferent" to his mother, and that respondent-mother had more of a bond with her younger child, EM. NE also testified that he wished to live with his grandmother and brother, but not his mother. NE further testified that respondent-mother "tricked me into smoking weed" and that he had witnessed his mother and her "drug friends" taking "pictures of naked clothes, which was nudity."
Further, all of respondent-mother's mental health providers opined that respondent-mother had a severe mental illness, although the exact diagnosis varied. Dr. Thomas Muldary, Ph.D., who performed respondent-mother's psychological evaluation, diagnosed her with Bipolar I disorder with psychotic, antisocial personality disorder and narcissistic personality disorder. He recommended referral to a psychiatrist for possible placement on psychotropic medication, but noted that respondent-mother "may resist complying with a prescribed medication regimen, as she denies that she has any significant problems and believes that the only thing that could possibly help her is marijuana." Dr. Mubeen Memon, M.D., performed respondent-mother's psychiatric evaluation and diagnosed her with a mood disorder and marijuana abuse and recommended a trial of psychotropic mood stabilizers. Respondent-mother admitted to never taking any psychotropic medication during these proceedings. Lewis, who possesses a master's degree in counseling and had completed the majority of a Ph.D., testified that she initially diagnosed respondent-mother with Bipolar II disorder and an adjustment disorder, but later changed her Bipolar II disorder diagnosis to schizophrenia based on her observation of respondent-mother's religious delusions, disorganized speech and writing patterns, and lack of motivation. Dr. William Medick, Ph.D., respondent-mother's expert witness, testified that he had diagnosed respondent-mother with post-traumatic stress disorder (PTSD). Dr. Medick testified that he did not prescribe medication, but that medication may be necessary to stabilize respondent-mother. Dr. Medick testified to his belief that respondent-mother had been inaccurately diagnosed and would benefit from regular treatment for PTSD; he described respondent-mother as "salvageable." However, Dr. Medick also stated, in response to questioning by petitioner's counsel, that he did not know whether respondent-mother would be stable and able to parent her children within the next 12 months.
During the trial, respondent-mother interrupted witnesses and had dozens of verbal outbursts despite the trial court's reprimands. Respondent-mother left the courtroom suddenly several times while witnesses were testifying. Respondent-mother's outbursts were frequently religious in nature. On the evening of the second day of the dispositional hearing, respondent-mother was arrested after she fled police and crashed her car, and was charged with several offenses.
With regard to respondent-father, the trial court heard evidence of his non-compliance with his case service plan as described above. Respondent-father was incarcerated at the time of the dispositional hearing, and was serving a sentence of 20 months to 252 months. Respondent-father's caseworker testified that respondent-father was availing himself of some services that were available in prison, but that other services existed, including mental health treatment, that respondent-father had not availed himself of despite the worker's recommendation. The caseworker testified that respondent-father had not seen EM during the pendency of this case.
The trial court held that the petitioner had proven by clear and convincing evidence the existence of all four statutory grounds for termination listed in the petition, for both respondents. The trial court also held that termination of respondents' parental rights was in the children's best interests. These appeals followed.
II. STANDARD OF REVIEW
In termination proceedings, this Court must defer to the trial court's factual findings if those findings do not constitute clear error. MCR 3.977(K). Both the trial court's decision that a ground for termination has been proven by clear and convincing evidence and the court's determination of the children's best interests are reviewed for clear error. In re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009). "A finding is 'clearly erroneous' [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
III. STATUTORY GROUNDS FOR TERMINATION
The trial court found, with respect to both respondents, that petitioner had proven the statutory grounds for termination of parental rights found in MCL 712A.19b(3)(c)(i) and (ii), (g), and (j). Respondents assert that the trial court erred and that none of the four grounds was established. We disagree.
The relevant provisions of MCL 712A.19b(3) state as follows:
(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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, 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, 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.
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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.
A. MCL 712A.19b(3)(c)(i) AND (ii)
Respondent-mother argues that the trial court erred by finding that statutory grounds for termination had been proven under this subsection, because she had completed a "majority" of her case service plan. We disagree.
The issues that led to respondent-mother's adjudication were substance abuse, unfit housing, financial instability, and mental instability. The trial court did not err by finding that these conditions continued to exist. In the first instance, contrary to respondent's assertions, Dr. Medick did not testify that respondent-mother would be "back on track" in 12 months. Dr. Medick did testify that respondent-mother could probably "reestablish" herself within 12 months, assuming that respondent-mother was motivated to do so and was willing to continue treatment with Dr. Medick on a regular basis. Dr. Medick also testified that he did not know whether respondent-mother would be ready to resume the care of her children within 12 months. Further, Dr. Medick testified that up to that point respondent-mother had not been consistent with treatment and he had seen her only five times. Respondent-mother also refused to consider the use of psychotropic medication or ceasing the daily use of marijuana in order to treat her mental health issues, despite a diagnosis of cannabis abuse. Respondent-mother also had her individual therapy terminated after she threatened her therapist and had not seen any counselor or therapist regularly since then. Finally, respondent-mother made numerous outbursts in court during the hearing and seemed unable to control her behavior. The trial court did not err by holding that respondent-mother had failed to address her mental health issues at the time of termination.
Further, with regard to her substance abuse, respondent-mother relapsed to heroin use once during the pendency of the proceedings below, although she subsequently completed an inpatient treatment program. She was discharged or left her follow-up care at Hollywood House due to financial difficulties and at the time of termination was not involved in any substance abuse treatment. Although some progress was arguably made in this area, including clean drug screens and completion of an inpatient program, we are not left with a definite and firm conviction that a mistake was made by the trial court in holding that this condition continued to exist. Miller, 433 Mich at 337.
With regard to housing and finances, the record reflects that respondent-mother was living with her aunt at the time of the termination hearing; however, the caseworker testified that she had not been allowed inside the home. Petitioner was thus unable to evaluate whether the home was suitable for the children. No evidence was presented that the home was suitable for two young children. Further, the record reveals that respondent-mother moved frequently during the pendency of the hearing, including frequent stays with friends, and had stayed at least once in a homeless shelter. With regard to employment, respondent-mother worked sporadically at the beginning of the proceedings but had not worked since September 2015 and had no legal source of income at the time of termination. The record supported the trial court's finding that these conditions continued to exist. In sum, the trial court did not err by finding that MCL 712A.19b(3)(c)(i) was proven by clear and convincing evidence. Rood, 483 Mich 73, 90-91.
With regard to (c)(ii), the supplemental petition filed in February 2016 alleged that respondent-mother had failed to benefit from any services provided and refused to cooperate with service providers. The record bears out those allegations. Petitioner threatened or abused nearly every service provider with whom she came into contact, as well as her mother. It is clear from the record that respondent-mother does not believe she has a problem and has not benefitted from the services she did complete. See In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005), superseded by statute in part on other grounds in MCL 712A.19b(5) (finding no error in termination of the respondent's parental rights when respondent-mother "did not sufficiently benefit from the services offered to enable the court to find that she could provide a home for her children in which they would no longer be at risk of harm"). Simply put, it is not enough to merely participate in services; a respondent must benefit from them. Id. We conclude that the trial court did not err by holding that this ground was proven by clear and convincing evidence. Rood, 483 Mich 73, 90-91.
Respondent-father argues that the trial court erred by finding that these statutory grounds had been proven by clear and convincing evidence. We disagree. Respondent-father pleaded to allegations in the original petition that he had not been a part of EM's life since 2013, and that his home was unfit for EM due to substance abuse and criminality. While respondent-father argues that he had improved his position by the time of termination, the record reveals that respondent-father was in substantially the same place as when these proceedings started. He was serving a prison term for a crime that he testified was related to a relapse into the use of heroin. He had violated his parole several times and been jailed for those violations. He only completed two drug tests and tested positive for cocaine on one of them. Respondent-father admitted that he was in arrears on his child support obligation and had not seen EM during the pendency of these proceedings. We conclude that the trial court did not err by holding that the statutory ground found in subsection (c)(i) was proven by clear and convincing evidence. Id.
Regarding subsection (c)(ii), the supplemental petition alleges that respondent-father failed to comply with "every aspect of his Case Service plan" and refused to attend court hearings when he was not incarcerated. The record does contain some testimony from respondent-father about services of which he has availed himself while in prison, and respondent-father did complete an inpatient substance abuse program. Thus it may not be strictly accurate that respondent-father has failed to comply with "every" part of his case service plan. But it is clear that respondent-father did not avail himself of all the services available to him, especially when out of prison, and failed to maintain contact with his service providers when not incarcerated. Nor does it appear respondent-father benefited from the services he did receive. Gazella, 264 Mich App at 676. And respondent-father did fail to attend hearings when he was not incarcerated. We therefore conclude that the trial court did not err by finding that this statutory ground was proven by clear and convincing evidence. Rood, 483 Mich 73, 90-91.
B. MCL 712A.19b(3)(g) AND (j)
Respondent-mother argues that the trial court erred by finding that subsections (g) and (j) were proven by clear and convincing evidence, and claims that the only evidence that supported the trial court's findings was the testimony of NE that respondent-mother had made him and his brother smoke marijuana. We disagree. Regardless of NE's testimony on that issue, which respondent-mother argues is countered by the children's negative drug screens, the record contains substantial evidence of respondent-mother's inability to provide proper care or custody for her children and that there is a reasonable likelihood that the children would be harmed if returned to her home. Respondent's inconsistent efforts to treat her mental illness, her unstable housing, her lack of income, and the lack of substance abuse treatment apart from her stay at an inpatient facility all support the trial court's findings. Additionally, the trial court heard testimony that respondent-mother had forced a cupcake into NE's mouth, had grabbed the children's arms aggressively to correct them during supervised visits, and had put dirt into EM's mouth. Respondent-mother's threats of violence to multiple service providers and her own mother provide further support for the trial court's finding that MCL 712A.19b(3)(j) was proven by clear and convincing evidence. Finally, respondent-mother's lack of compliance with the majority of her case service plan supports the trial court's finding that MCL 712A.19b(3)(g) was proven by clear and convincing evidence. In re BZ, 264 Mich App 286, 300-31; 690 NW2d 505 (2004). In sum, the trial court did not err by finding that both of these statutory grounds for termination where proven by clear and convincing evidence with respect to respondent-mother. Rood, 483 Mich 73, 90-91.
Respondent-father argues that the trial court erred in finding that the statutory grounds in subsections (g) and (j) were proven by clear and convincing evidence, because EM was in the care of his maternal grandmother, he has made improvements while in prison, and any risk of harm to EM is "speculative." We disagree. Respondent-father's lack of compliance with the majority of his service plan, and failure to take advantage of all relevant services offered while incarcerated, support the finding that MCL 712A.19b(3)(g) was proven by clear and convincing evidence. BZ, 264 Mich App at 300-31. Further, although respondent-father asserted that he did not currently seek to have EM live with him and merely sought visitation, there remains the fact that the record demonstrates that respondent-father will not be able to provide proper care and custody for EM within a reasonable time. When not incarcerated, respondent-father completely lost contact with petitioner, did not complete any services, and did not provide any financial support to EM. The trial court did not err by finding this statutory this statutory ground proven by clear and convincing evidence. And with respect to MCL 712A.19b(3)(j), the trial court's finding that respondent-father's failure to address his criminality, substance abuse, or unstable housing represents a reasonable likelihood of harm to the children is firmly supported by the evidence, and was far from "speculative." The trial court did not err by finding this statutory this statutory ground proven by clear and convincing evidence. Rood, 483 Mich 73, 90-91.
IV. BEST-INTEREST DETERMINATION
Both respondents also challenge the trial court's determination that termination of the parental rights was in the children's best interests. Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 612 NW2d 407 (2000). Relevant factors in this consideration 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." Olive/Metts, 297 Mich App at 41-42 (citations omitted). "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." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
A preponderance of the evidence supports the finding that termination of respondent-mother's parental rights was in NE and EM's best interests. Respondent-mother's unresolved mental health and substance abuse issues render her unable to provide a stable home for her children. Further, the record shows that NE did not want to live with his mother and there was not a strong bond between them; additionally, each child was subjected to harm from respondent-mother even during supervised visits. Both children are bonded to their maternal grandmother, who wishes to adopt them. Although placement with relatives may weigh against termination, In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010), here the trial court heard evidence of respondent-mother's harassment and threats toward her mother, making implementing a guardianship while retaining respondent-mother's parental rights, or retaining respondent-mother's rights and continuing the placement, unsafe under the circumstances and contrary to the children's best interests. The trial court did not clearly err in its best-interest determination with respect to respondent-mother.
A preponderance of the evidence also supports the finding that termination of respondent-father's rights to EM was in EM's best interests. The trial court noted that EM has no bond with his father, who has not seen EM since early 2013, and, as stated, is bonded with his maternal grandmother, who wishes to adopt him. The record contains no evidence that respondent-father will be able to provide any sort of support, care, or guidance to EM, or offer him the permanence and stability he deserves. Olive/Metts, 297 Mich App at 41-42. The trial court did not clearly err in its best-interest determination with respect to respondent-father.
V. RESPONDENT-MOTHER'S REMAINING ARGUMENTS (DOCKET NO. 333724)
In docket number 333724, respondent-mother argues that she was denied due process of law by the trial court's failure to ensure that respondent-mother was competent at the time of the termination hearing, and that the trial court failed to give the appropriate weight to Dr. Medick's testimony that respondent-mother had been misdiagnosed in the past. We disagree with both assertions.
Respondent-mother did not raise the issue of competency before the trial court. Accordingly, our review is limited to plain error affecting substantial rights. In re Utera, 281 Mich App 1, 8; 761 NW2d 253 (2008). An error affects substantial rights if it caused prejudice by affecting the outcome of the proceedings. Id. If plain error has occurred, "[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks and citations omitted; alteration in original).
The Due Process Clauses of the federal and Michigan constitutions, US Const, Am XIV; Const 1963, art 1, § 17, protect citizens from the deprivation of life, liberty, or property without due process of law. "A claim of incompetency to stand trial, and the right to a competency determination, implicates constitutional due process protections." In re Carey, 241 Mich App 222, 226; 615 NW2d 742 (2000). In Carey, this Court stated that the Due Process Clause "requires that a court sua sponte hold a hearing regarding competency when any evidence raises a bona fide doubt about the competency" of a juvenile subjected to Family Division proceedings. Id. at 227-228. Respondent-mother has presented this Court with no binding authority, and this Court has found none, requiring a trial court to apply the rule from Carey to adult respondents prior to terminating their parental rights. However, we need not determine whether the Carey rule extends that far, as even if the trial court had been bound in such a manner, it would not have been compelled to sua sponte hold a competency hearing.
While evidence was presented that respondent-mother suffered from mental health issues, no evidence was presented that those issues prevented respondent-mother from understanding the proceedings or participating in her defense. Respondent-mother conferred with her counsel several times and appeared to suggest questions for witnesses. Further, no evidence was presented that respondent-mother's cognition was impaired to the point that she could not comprehend the proceedings, or that the various diagnoses from experts prevented her from understanding the proceedings or participating in her defense. While respondent-mother did make several outbursts during the trial, the outbursts were generally related to the statements of witnesses that she felt were untrue; she thus appeared to understand the meaning and import of the testimony that was given at the hearing. No other documentation such as mental health records or affidavits established a "bona fide doubt" regarding respondent-mother's competency. Id. at 227-228. We hold that the trial court did not commit plain error by failing to sua sponte order a hearing on respondent-mother's competency.
Respondent-mother asserts on appeal that she was subsequently found not competent to stand trial for charges related to the incident where she fled police and crashed her car. We do not find this fact persuasive. Respondent-mother states that a competency exam was requested and granted in that criminal case. The fact that another court, on a later date, saw fit to grant a request for a competency exam does not, regardless of the exam results, affect our plain-error analysis in this case. --------
With respect to Dr. Medick's testimony, respondent-mother essentially argues that the trial court failed to give it proper weight, and as a result failed to determine that she was not given enough time to benefit from services because she was misdiagnosed on previous occasions. We disagree. We review a weight of the evidence argument in termination cases for clear error. See In re Miller, 433 Mich 331, 337; 455 NW2d 161 (1989). And we give regard to the trial court's "special opportunity . . . to judge the credibility of witnesses who appeared before it." Id. In the first instance, if the trial court simply found Dr. Medick's testimony not credible, we would not find that to be clear error. Id. Additionally, the record is clear that respondent-mother did almost nothing, prior to seeing Dr. Medick, to address her mental health issues other than submit to the required initial evaluations and a short-lived period of individual therapy. Even assuming that Dr. Medick's diagnosis is the correct one, this was not a case of a respondent who attempts to fix her issues but receives inadequate assistance from mental health providers; rather, respondent-mother failed to take advantage of services recommended by her evaluators, thus preventing any refining or altering of her diagnoses over the course of treatment (and the adjustment of treatment methods as needed). Dr. Medick also stated that respondent-mother had not been consistent in pursuing treatment with him. There was no reason for the trial court to conclude that giving respondent-mother more time with Dr. Medick would result in her gaining the ability to effectively parent her children. We find no clear error with respect to the trial court's weighing of Dr. Medick's testimony. See Miller, 433 Mich at 337.
Affirmed in both docket numbers.
/s/ Michael J. Talbot
/s/ Christopher M. Murray
/s/ Mark T. Boonstra