Opinion
No. 350579 No. 350580
04-23-2020
In re FENTON, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Branch Circuit Court Family Division
LC No. 17-005646-NA Before: GADOLA, P.J., and STEPHENS and SHAPIRO, JJ. PER CURIAM.
In these consolidated appeals, respondent-mother and respondent-father appeal as of right the trial court's order terminating their respective parental rights to two minor children under MCL 712A.19b(3)(c)(i) (failure or inability to rectify conditions of adjudication) and (g) (failure to provide proper care and custody). We affirm.
I. BACKGROUND
In December 2017, the Department of Health and Human Services (petitioner) filed a petition for temporary custody requesting that the trial court issue an order removing the minor children from the respondents' home and take jurisdiction over them because respondents were unable to provide a safe environment for the children. Specifically, the petitioner averred that there had been ongoing Children's Protective Services (CPS) involvement, including four substantiated cases of abuse or neglect since 2013 and five unsubstantiated cases. According to the petition, on December 2, 2017, police responded to the home after respondents "blacked out" from excessive alcohol and marijuana use, resulting in mother's hospitalization. Mother tested positive for tetrahydrocannabinol (THC), opiates, oxycodone, and benzodiazepines, but maintained that father drugged her. There were also allegations of domestic violence, including that father fractured mother's arm, cut her scalp, and bruised her face. Father reported that mother took "pills" and was irresponsible around the children. There were also housing instability issues. The children's attendance at school was "sporadic," and they would arrive at school hungry and dirty. Mother failed to pick up the children from school on several occasions. After a December 8, 2017 preliminary hearing, the court authorized the petition based on the parents' drug use and domestic violence, but placed the children with the mother while father was incarcerated for the domestic violence incident. The children were placed into foster care approximately six days later after mother refused petitioner's assistance with services, failed to attend three family team meetings, tested positive for THC, and her home was found to be without furniture and sufficient food.
At the January 2018 adjudication hearing, mother admitted that there were four substantiated cases of abuse or neglect and five unsubstantiated cases since 2013. Mother denied the allegations of substance abuse, neglect, and domestic violence. She asserted that she did not "black out" but only fell asleep. She testified that she woke up to father hitting her, that he fractured her arm, cut her scalp, and bruised her face, and that father was subsequently arrested for domestic violence. She could not remember details of the incident and acknowledged that her drug and alcohol use affected her memory and perception. Father also admitted to his past CPS involvement, that he was under the influence of alcohol and marijuana at the time of the domestic violence incident, and that the incident resulted in his second case of domestic violence charges being filed against him involving the mother. He admitted that he had pled guilty to a one-year domestic violence misdemeanor offense in district court, and that the trial court sentenced him to a year in jail with a suspended sentence after 90 days. On this factual basis, the trial court took jurisdiction over the children.
Nearly a year-and-a-half later, and with the children still in foster care, the petitioner moved to terminate respondents' parental rights. The petition alleged that neither respondent had been able to maintain stable and safe housing for their children since the removal, and that they both tested positive for drugs on several occasions. Additionally, the petitioner cited respondents' probation violations and incarceration, failure to attend services and counseling, and inability to parent. Father's anger and substance abuse issues were a part of the petition as was mother's continued unemployment.
Mother acknowledged most of the allegations in the petition for permanent custody. Specifically, she acknowledged that her drug use impacted her ability to parent the minor children, her inconsistent participation in therapy, failure to complete parenting education classes, and her housing instability. Importantly, she admitted that there was a risk of harm to the children if the trial court returned them to her and that the children "shouldn't wait no more." Father's admissions were less encyclopedic. He admitted to limited participation in services, two instances of incarceration, drug use, and failure to complete parenting education. Father denied excessive alcohol use, but acknowledged his addiction to methamphetamines. Father stated that he had trouble getting help for his addiction because he was "working all the time" and recognized that because he had no lease, his employer could withdraw his housing at any time. Father admitted that the trial court should be concerned about his history of setbacks and that he "hope[d]" that he had "learned [his] lesson this time." He also admitted that he "make[s] poor choices" that impact his children and put them at risk.
The court found statutory grounds for termination under MCL 712A.19b(3)(c)(i) and (g). Addressing MCL 712A.19b(3)(c)(i), the trial court found that although there had not been any recent reported incidents of domestic violence, father failed to follow through with recommendations that he attend anger management and participate in counseling. The trial court did not believe that father appropriately participated in services or benefited from the services provided. The trial court also recognized that both father and mother had admitted that their housing situation remained precarious. The trial court continued to find that there was "overwhelming" evidence of both parents' continued substance abuse problems, including positive drug screens within the past month for methamphetamines. The trial court also found that the parents' unstable housing only existed "by the grace of" father's employer. Accordingly, the trial court found that there was no reasonable expectation, considering the children's age and for how long the children had been out of their care, that mother or father would be able to rectify the conditions that led to adjudication.
Under MCL 712A.19b(3)(g), the trial court found that mother and father had failed to provide proper care and custody for the children as they were "barely providing for themselves at this point in time," as mother was unemployed and father's employment, while consistent, appeared to provide "unbelievably minimal" pay. The trial court held that it was "clearly convinced at this point in time they can't provide for their children, and there's no reasonable expectation they're going to be able to do that, again, considering the age of the children." The trial court added that it initially did not remove the children, but that mother had failed to participate in required programs to ensure the children's safety and that, overall, there was "no evidence here that really either parent completed anything at all."
The trial court also held that termination of parental rights was in the children's best interests. The trial court found that recent positive tests by both parents for methamphetamine use and unstable housing made the parents unable to provide the safety, stability, and permanence, that the children needed. The trial court added that, on the basis of the evidence presented, there was nothing "encouraging" that might suggest termination of parental rights was not in the children's best interests.
II. DISCUSSION
A. DOCKET NO. 350579
In Docket No. 350579, mother argues (1) that the petitioner did not establish the statutory grounds for termination of parental rights by clear and convincing evidence; and (2) that termination of her parental rights was not in the best interests of the children. We disagree.
1. STANDARD OF REVIEW
The clear-error standard controls our review of both the court's decision that clear and convincing evidence supported a ground for termination and that termination served the children's best interests. In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake. In re Conley, 216 Mich App 41, 42; 549 NW2d 353 (1996). In reviewing the circuit court's decision, we also must give "due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). [In re Dearmon, 303 Mich App 684, 699-700; 847 NW2d 514 (2014).]
The trial court must find at least one of the statutory grounds for termination by clear and convincing evidence in order to terminate parental rights. In re Gonzalez/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015). If this Court finds that the trial court did not clearly err as to the existence of one ground for termination, this Court need not address any additional termination grounds. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). "Even if the trial court finds that [the petitioner] has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children." In re Gonzalez/Martinez, 310 Mich App at 434.
2. STATUTORY GROUNDS
The trial court did not clearly err by finding that the petitioner proved one or more statutory grounds for termination of parental rights by clear and convincing evidence.
Termination of parental rights under MCL 712A.19b(3)(c)(i) is proper when, after a period of 182 or more days has elapsed, 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." This statutory subsection requires more than "the mere possibility of a radical change" in the parent's life, and instead considers whether, under the totality of the circumstances, there was "any meaningful change" in the ability of the parent to overcome the circumstances that originally caused adjudication. In re Williams, 286 Mich App at 272-273.
Termination of parental rights under MCL 712A.19b(3)(g) is proper when "[t]he 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." See 2018 PA 58. A parent's failure to follow through with and progress in court-ordered counseling and therapy can establish grounds for termination under Subsection (3)(g). See In re Trejo, 462 Mich 341, 362-363; 612 NW2d 407 (2000).
Mother's own testimony was sufficient to support termination. Mother admitted failure to complete services, substance abuse, unstable housing and the inability to raise the children. The record contains other evidence of these same issues. Mother tested positive for methamphetamines only a week before the termination hearing and had five or six positive drug screens since the initial disposition, including for methamphetamine, amphetamine, oxycodone, and hydrocodone. Moreover, mother's foster care worker described mother's parenting visits as "very chaotic" and "difficult," and explained that mother was unable to appropriately discipline the children.
On this record, the trial court did not clearly err by finding that the conditions that led to the adjudication still existed at the time of the termination hearing and that there was no reasonable likelihood that mother would rectify these conditions within a reasonable time frame. See In re Williams, 286 Mich App at 272-273. Likewise, the trial court did not clearly err by concluding that mother was unable to provide proper care and custody for the minor children. See In re Trejo, 462 Mich at 362-363.
3. BEST INTERESTS
The trial court was required to find by a preponderance of the evidence that termination of parental rights was in the minor child's best interests. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). "In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016) (quotation marks and citation omitted).
"[T]he 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," are all factors for the court to consider when deciding whether termination is in the best interests of the child. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). A child's placement with relatives is a factor that the trial court is required to consider. In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). See MCL 712A.19a(6)(a). Generally, "a child's placement with relatives weighs against termination . . . ." In re Olive/Metts Minors, 297 Mich. App. 35, 43; 823 NW2d 144 (2012) (quotation marks and citation omitted). [In re Gonzalez/Martinez, 310 Mich App at 434.]"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. When considering the best interests of multiple children, "if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." Id. at 715.
In three short sentences, mother maintains only that she "feels like she is bonded with her children" because they "cry when they are separated from her at the end of visits," that she has appropriate housing, and that the children "are still young and will be able to adjust" if eventually returned to her care. Again, we disagree. Mother had not been regularly involved in the children's lives for nearly two years and plainly admitted during the termination hearing that she presented a risk to her children for all the above-cited reasons and that it was unfair for the children to wait for her to change. Accordingly, we conclude that the trial court did not err in concluding that termination of mother's parental rights was in the minor children's best interests.
B. DOCKET NO. 350580
In Docket No. 350580, father argues (1) that the trial court violated his constitutional rights under the Establishment Clause of the United States Constitution by ordering his participation in Narcotics Anonymous (NA); and (2) that the trial court erred by concluding that his incarceration was a basis for the trial court to exercise its jurisdiction over him. We find no merit in these arguments.
1. STANDARD OF REVIEW
Because father did not raise these arguments before the trial court, they are unpreserved. This Court reviews unpreserved claims of error arising out of child protecting proceedings for plain error. See In re Pederson, ___ Mich App ___, ___; ___ (2020) (Docket No. 349881); slip op at 8.
There are four steps to determining whether an unpreserved claim of error warrants reversal under plain-error review. First, there must have been an error. Deviation from a legal rule is 'error' unless the rule has been waived. Second, the error must
be plain, meaning clear or obvious. Third, the error must have affected substantial rights. This generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. The [respondent] bears the burden of establishing prejudice. Fourth, if the first three requirements are met, reversal is only warranted if the error . . . seriously affected the fairness, integrity or public reputation of judicial proceedings. [People v Shafier, 483 Mich 205, 219-220; 768 NW2d 305 (2009) (quotation marks and citations omitted).]
2. ESTABLISHMENT CLAUSE
Initially, the record does not support the basic premise of father's initial argument. At no point did the trial court order father to participate in NA. Rather, the trial court's orders required only that father participate in substance abuse evaluations as requested by the petitioner and follow the recommendations of any such evaluations. Father's psychological evaluation stated only that
For purposes of this discussion, we assume without deciding that the drug-treatment programming offered by NA espoused a faith-based philosophy that amounted to religious proselytization. See, e.g., Turner v Hickman, 342 F Supp 2d 887, 896 (ED Cal, 2004) (concluding that NA program was "fundamentally religious, based as it is on the concept of a higher power to which participants must submit"); Kerr v Farrey, 95 F 3d 472, 480 (CA 7, 1996) ("A straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being."); O'Connor v California, 855 F Supp 303, 307 (CD Cal, 1994) (discussing "religious overtones" and "monotheistic principles" associated with Alcoholics Anonymous).
Again, because this issue is unpreserved, there is a dearth of evidence in the record concerning defendant's nonparticipation in NA programs. Notably, for additional context, during the termination hearing, father testified that he did in fact participate in NA while incarcerated. Father also testified that he believed he could benefit from treatment through Alcoholics Anonymous, a program similar to NA, but "never did." When asked if he had ever participated in treatment "relative to drug use," father responded that when he was in jail he "went to the AA meetings and stuff like that." --------
It is important [father] attend and complete his domestic violence treatment program with random drug/alcohol screens. He should also attend a program such as NA to obtain support on more of a long-term basis.
Even on the merits, we would hold that the termination of father's parental rights did not implicate his constitutional rights under the Establishment Clause. The First Amendment of the United States Constitution provides in pertinent part that "Congress shall make no law respecting an establishment of religion . . . ." US Const, Am I. "The Establishment Clause guarantees governmental neutrality with respect to religion and guards against excessive governmental entanglement with religion." Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 156; 756 NW2d 483 (2008). However, "pinning down the meaning of a 'law respecting an establishment of religion' has proven to be a vexing problem." American Legion v American Humanist Ass'n, ___ US ___, ___; 139 S Ct 2067, 2080; 204 L Ed 2d 452 (2019) (quotation marks and citation omitted) (discussing flaws in existing Establishment Clause precedent and partially abrogating the application of the "Lemon test" set forth in Lemon v Kurtzman, 403 US 602; 91 S Ct 2105; 29 L Ed 2d 745 (1971)). Although the Supreme Court's recent decision in American Legion challenged the continuing supremacy of the Lemon test, it did not expressly overrule that analysis. The primary inquiry remains "whether a 'reasonable observer' would conclude that the action constituted an 'endorsement' of religion." American Legion, 139 S Ct at 2080, quoting Allegheny Co v American Civil Liberties Union, Greater Pittsburgh Chapter, 492 US 573, 592; 109 S Ct 3086; 106 L Ed 2d 472 (1989); see Scalise v Boy Scouts of America, 265 Mich App 1, 11-12; 692 NW2d 858 (2005).
Accordingly, applying the Lemon test, this Court must discern whether the challenged government action (1) has a secular purpose; (2) has a principal or primary effect " 'that neither advances nor inhibits religion' "; and (3) does not foster " 'an excessive government entanglement with religion.' " Scalise, 265 Mich App at 11-12, quoting Lemon, 403 US at 612-613. "If state action violates any prong of Lemon, that action contravenes the clause." Scalise, 265 Mich App at 12. Notably, "[t]he Lemon test does not require, nor did the framers of the Constitution intend, to impose a constitutional straightjacket preventing any sentiment of religious belief," and the Establishment Clause does not amount to a "blanket prohibition" of any governmental association with social-welfare organizations that happen to espouse faith-based philosophies. Id. at 14.
To the extent that the petitioner or the trial court allegedly encouraged or recommended that defendant participate exclusively in NA for treatment of his substance abuse problem—although there does not appear to be any evidence in our record supporting that supposition—there was no suggestion that: father's parental rights were conditioned on such participation, the petitioner or the trial court had a religious purpose in recommending such participation, the primary effect of participation in NA was the advancement of religion rather than the overcoming of defendant's substance abuse, or the recommendation was akin to an endorsement of religion. Moreover, even assuming that the trial court or the petitioner compelled his participation in NA rather than some other drug treatment program, he still cannot demonstrate the prejudice necessary to prevail under the plain-error standard of review because he openly admits that "it [is] speculative if another program would have helped him sufficiently overcome substance abuse." In light of this admission, father cannot establish that the results of the child protective proceedings would have differed as required to obtain relief under the plain-error standard. See In re Pederson, ___ Mich App at ___; slip op at 8.
2. TRIAL COURT'S JURISDICTION
Father also argues that his incarceration was not a valid basis for the trial court to exercise jurisdiction. However, he acknowledges that the trial court also found illicit drug use, unstable housing, and domestic violence as additional, independent bases supporting its adjudication decision. "[T]o warrant our review, the parties must present this Court with a real controversy, rather than a hypothetical one." In re Smith, 324 Mich App 28, 41; 919 NW2d 427 (2018). "This requirement, commonly known as the real-case-or-controversy requirement, prevents this Court from rendering advisory opinions that have no practical legal effect in a case." Id. (quotation marks and citation omitted). Because father declines to challenge these other, independent bases for the trial court's exercise of jurisdiction in this case, we must decline his invitation to address the substantive merits of this argument because our decision would have no practical legal effect in this case. See id.
Affirmed.
/s/ Michael F. Gadola
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro