Opinion
No. 342735
09-18-2018
In re FARROW, Minors.
UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2016-000504-NA Before: MURRAY, C.J., and CAMERON and LETICA, JJ. PER CURIAM.
Respondent-mother appeals by right the trial court's order terminating her parental rights to her twin, minor children, CLF and DMF, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
The trial court also terminated the parental rights of the children's father, who is not a party to this appeal.
The children were removed from mother's care because of mother's issues with substance abuse, lack of appropriate housing, and lack of employment. These issues continued to plague mother throughout the case.
Mother first argues on appeal that the trial court clearly erred in finding that the Department of Health and Human Services (DHHS) proved a statutory ground for termination of parental rights by clear and convincing evidence.
In order to terminate parental rights, the trial court must find that at least one of the statutory grounds for termination has been met by clear and convincing evidence. MCL 712A.19b(3); In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). We review the trial court's determination for clear error. In re VanDalen, 293 Mich App at 139. "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 HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
The trial court terminated mother's parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which state:
MCL 712A.19b(3)(g) was amended by 2018 PA 58, which became effective June 12, 2018. In reaching our decision, we only consider the language of the statute in effect at the time of mother's termination. Additionally, we note that mother's rights were not terminated under MCL 712A.19b(3)(a). --------
(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:
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(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, 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.
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 and that there would be a risk of harm if the child were returned to the parent. In re White, 303 Mich App 701, 710-711; 846 NW2d 61 (2014). "Harm" under MCL 712A.19b(3)(j) includes physical as well as emotional harm. See In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011).
The evidence clearly supported the trial court's ruling, as it shows that (1) mother tested positive for methamphetamine on nearly every drug screen that she submitted; (2) mother consistently refused substance abuse treatment, despite multiple referrals from the DHHS and even an offer from a friend to drive her to an out-of-state, inpatient rehabilitation program; (3) mother never had housing that was appropriate for herself and the children, and (4) mother never demonstrated any legitimate employment. This case proceeded for 14 months before the first termination hearing, and as the trial court found, mother failed to participate in or benefit from nearly every service that was offered to her. She consistently failed to contact service providers, set appointments, or attend appointments, despite multiple offers from the DHHS caseworkers to help mother schedule her appointments. Mother only sporadically participated in individual counseling, and nothing in the record reflected that she benefited whatsoever. Although only one statutory ground need be proven in order to terminate mother's parental rights, MCL 712A.19b(3), we conclude that all four statutory grounds listed above were proven by clear and convincing evidence. Thus, we are not "left with a definite and firm conviction that a mistake has been made," In re HRC, 286 Mich App at 459, in the trial court's finding's. Accordingly, we hold that the trial court did not clearly err in finding that at least one statutory ground was proven by clear and convincing evidence.
To the extent mother argues that the order should be reversed because she was simply too distressed about the loss of her child to timely comply with DHHS's requests, she is mistaken. The argument does not address the grounds to terminate found to exist by the trial court, nor does mother recognize or discuss the time limits that are placed on these cases.
We also reject mother's argument that the trial court clearly erred in finding that the DHHS made reasonable efforts to reunify mother and the children.
An objection to the inadequacy of services must be made when the trial court adopts a case service plan or soon afterward, not at a dispositional hearing to terminate parental rights. See In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012); In re Terry, 240 Mich App 14, 26-27; 610 NW2d 563 (2000). Mother did not object to the DHHS's efforts to reunify until after the initial termination hearing began. Therefore, the issue is unpreserved, and it is reviewed for plain error affecting mother's substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App at 135 (quotation marks and citation omitted). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.
"Reasonable efforts to reunify the child and family must be made in all cases" except under certain circumstances not present in this case. MCL 712A.19a(2). "If reunification is the permanency planning goal, the court must consider whether efforts by the supervising agency to reunify a family are reasonable." In re Rood, 483 Mich 73, 98; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.) (quotation marks and citation omitted). Although 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 at 248. "Not only must respondent cooperate and participate in the services, she must benefit from them." In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014).
Mother's primary issue was her substantial methamphetamine addiction. The DHHS referred mother for a substance abuse evaluation. Mother was resistant to the evaluation, but she eventually complied. The evaluation revealed a substantial substance abuse problem, and provided a recommendation for counseling and rehabilitation. The DHHS referred mother multiple times to Southwest Michigan Behavioral Health (SMBH) for substance abuse services, but she never contacted them. Mother was offered voluntary participation in a specialty drug court, but she declined to participate in that service.
Additionally, mother was discharged from Supportive Visitation, a parenting skills and education program, for noncompliance. Nor, the evidence shows, did mother contact Housing Resources and Michigan Works for assistance with housing and employment. Mother was referred to a counselor for individual counseling for her grief, substance abuse, and general therapy, but she canceled or missed the majority of her appointments. Mother likewise failed to contact a primary care physician so that she could start being prescribed medication, all despite the DHHS worker's multiple offers at multiple times to make telephone calls with mother to ensure that her appointments were scheduled.
We conclude that the DHHS made reasonable efforts to provide mother with services and assistance to reunify her with her children. However, mother failed to participate in and benefit from the services offered to her. Accordingly, we hold that mother has not demonstrated plain error affecting her substantial rights.
Mother lastly argues that the trial court clearly erred in finding that termination of her parental rights was in the children's best interests.
The trial court must find by a preponderance of the evidence that termination was in the children's best interests. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court's findings of fact are reviewed for clear error. In re HRC, 286 Mich App at 459. "If 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." MCL 712A.19b(5). In determining a child's best interests, the trial court may consider the child's bond to his parent; the parent's parenting ability; the child's need for permanency, stability, and finality; and the suitability of alternative homes. In re Olive/Metts 297 Mich App 35, 41-42; 823 NW2d 144 (2012). "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 at 714. The trial court may also consider the testimony and opinion of experts. See In re Conley, 216 Mich App 41, 44; 549 NW2d 353 (1996).
We conclude that the trial court considered the appropriate factors when making its best-interest determination. In reaching its decision, the trial court considered the opinions of the lawyer-guardian ad litem and the other attorneys involved in the case. It considered the possibility of adoption and found that it was "likely." The trial court considered the length of time the children were in foster care, noting that they had been in foster care for the majority of their lives. The trial court recognized that there was a bond between mother and the children, but it noted that mother stopped calling the children after her visits were suspended, and the children did not ask about mother. It considered the extent of mother's participation in and benefit from the case service plan, and reflected on her substance abuse issue. The trial court did not clearly err in finding that termination of mother's parental rights was in the best interests of the children.
Affirmed.
/s/ Christopher M. Murray
/s/ Thomas C. Cameron
/s/ Anica Letica