Opinion
No. 333783
01-17-2017
In re A. E. FAYAS, Minor.
UNPUBLISHED Dickinson Circuit Court Family Division
LC No. 14-000529-NA Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating his parental rights to a minor child, AEF. The court found that there was clear and convincing evidence that statutory bases existed for terminating parental rights under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm). The court also found that terminating respondent's parental rights was in the best interests of the child. On appeal, respondent only argues that termination was not in AEF's best interests. We affirm.
A petition was filed in this case after a welfare check on AEF and her mother revealed that the child, the mother, and respondent were living in unsanitary conditions. Hypodermic needles with drug residue were found throughout the house. The trial court ordered both parents to refrain from using alcohol and improper drugs, to participate in "any mental health counseling or substance abuse counseling that is recommended," and to follow the case-service plan, which, among other things, indicated that the parents were to find employment. Eventually, AEF was returned to the mother's care. Respondent, however, admitted to continued drug use, missed drug screenings, declined to participate in treatment plans after he was released from an inpatient substance-abuse program, and did not find employment, and petitioner sought termination of his parental rights.
This Court reviews for clear error a trial court's finding that termination is in a child's best interests. In re White, 303 Mich App 701; 713; 846 NW2d 61 (2014). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ and KZ, Minors, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
After the trial court finds that at least one statutory ground for terminating parental rights has been proven, the court must also find that terminating parental rights is in the child's best interests before rights may be terminated. MCL 712A.19b(5); In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). "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). The court must make this best-interests finding by a preponderance of the evidence. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).
When deciding whether terminating parental rights is in a child's best interests, the trial court should weigh all the available evidence. In re White, 303 Mich App at 713. The court may consider evidence regarding "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." In re Olive/Metts Minors, 297 Mich App at 41-42 (citations omitted). The 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. A "child's placement with relatives weighs against termination," and the trial court must explicitly consider such placement when deciding whether termination is in a child's best interests. In re Mason, Minors, 486 Mich 142, 164; 782 NW2d 747 (2010).
Respondent first suggests that the child's placement with her mother should be construed as a placement with a relative, which is a factor that the trial court was required to consider. However, this Court recently rejected this proposition, stating that a biological mother is not a "relative" as defined in MCL 712A.13a(1)(j) and that a trial court is therefore not required to consider such a placement when evaluating best interests. In re Schadler, Minors, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 327977); slip op at 3. In any event, the trial court did, in fact, consider the child's placement with her mother and nevertheless determined that termination was in AEF's best interests.
This determination was not clearly erroneous. The crux of respondent's argument is that even though "he has some work to do in regard to being a father," it was not in AEF's best interests to deprive her of a father and a relationship with her paternal relatives given that her mother had sole legal and physical custody and the ability to protect her from respondent's substance-abuse issues. Respondent emphasizes that the guardian ad litem was against termination. The guardian ad litem stated that although respondent "may not be the best parent at this time, there is a custody and parenting time order in place to protect [AEF]." However, as the trial court aptly stated, "To expect that the Friend of the Court [which deals with visitation] could oversee visitation or provide supervision for visitation after the protective proceeding was dismissed or to anticipate that the protective proceeding could continue indefinitely so as to provide supervision for [respondent] is unrealistic and an improper burden on the Friend of the Court and the taxpayers." Respondent had ample time to demonstrate proper parenting, extended sobriety, and a prolonged commitment to recovery and did not adequately do so. Moreover, and significantly, evidence indicated that the mother's behavior and parenting ability were influenced and diminished by her relationship with respondent. Absent a relationship with respondent, the mother was able to curb her drug addiction for 11 months and was found to be a responsible parent to AEF. Although respondent correctly notes that the caseworker indicated at the termination hearing that the mother, at least at present, could protect the child from respondent's substance abuse, the trial court did not clearly err in emphasizing the advantage to the child in having at least one parent free from negative influences and behaviors.
The caseworker's testimony was somewhat muddled, but the gist of her testimony was that the mother could protect AEF because respondent had no visitation rights at present. The caseworker was recommending termination because of concern regarding visitation rights respondent could potentially obtain in the future. The caseworker admitted that she was not "fully" aware of the services offered by the Friend of the Court, but stated that it had "more limited services . . . ."
The trial court emphasized that AEF was "developing nicely[,] . . . due in part to the permanency and stability that has been provided for her in the home with her mother and maternal grandparents." The trial court also noted that respondent was the mother's "largest trigger regarding substance abuse." --------
Finally, although there was evidence that AEF had a bond with respondent and respondent's family, this was only one factor to consider, and the trial court did not clearly err in finding that it was outweighed by other considerations.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Amy Ronayne Krause