Opinion
No. 337204
10-24-2017
In re K. FLAGG, Minor.
UNPUBLISHED Clinton Circuit Court Family Division
LC No. 16-026495-NA Before: BOONSTRA, P.J., and METER and GADOLA, JJ. PER CURIAM.
Respondent father appeals as of right the circuit court's order terminating his parental rights to respondents' minor child under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm). We affirm.
The trial court also terminated respondent mother's parental rights based on the same statutory grounds. Respondent mother has not appealed the order of the trial court. --------
Respondent father was subject to an Eaton County custody order issued in June 2013 granting sole physical custody of the child to her mother, while retaining joint legal custody for both parents. Respondent mother moved for custody after Child Protective Services (CPS) investigated respondent for physically abusing the child by whipping her with a wet rag hard enough to leave marks. The referee ordered respondent to complete anger management classes and substance abuse treatment. Two years later, in May 2015, respondent father began participating in the Ingham County Mental Health Court after a charge of retail fraud. Respondent father was required to attend counseling, appear at weekly review hearings, submit to drug testing, and maintain stable housing.
In June 2015, CPS investigated respondent mother when the child missed 18 days of school. The child reported that she could not wake her mother, adding that her mother had "friends" over who "hang out in her mom's bedroom." Respondent mother tested positive for cocaine and eventually admitted to a history of using crack. Consequently, the trial court authorized a petition to take the child into protective custody, and thereafter took jurisdiction over the child. The child was placed with her paternal grandmother with the goal of reunification of the child with respondents.
At that time, respondent father was in treatment as part of his mental health court probation, was testing clean for substances, and reported two years of abstinence from substance abuse. Respondent father completed an anger management class and showed proof of attendance at two recovery meetings. Respondent father expressed his willingness to participate in reunification efforts, and the caseworker recommended that he attend supervised parenting time. Respondent father thereafter attended some parenting sessions with the child, but was not consistent in his attendance. He cancelled one visit, left another visit early to buy a car, and left another visit early when he became frustrated with the child's behavior. During one visit, he had difficulty staying awake, possibly due to prescribed medications. At other visits, respondent father lectured the child, but showed some progress in interacting with the child with the help of the visitation coach. Nonetheless, the caseworker was concerned that respondent father was unable to put the child's needs before his own.
A psychologist diagnosed respondent father as suffering from stimulant use disorder, which was in remission, bipolar disorder, and a personality disorder with antisocial, borderline, and narcissistic components. The personality disorder manifested in criminal activity and violent tendencies, unstable relationships, and as a belief that he was more important than other people. The psychologist believed that respondent father was not able to care for the child or provide a stable environment. The psychologist also expressed concern about statements respondent made about the 11-year-old child's weight and bathing, and about respondent's belief that he did nothing wrong when he whipped the child with a wet washcloth.
The trial court authorized the filing of a termination petition in October 2016, expressing concern about providing permanency for the child and respondents' lack of commitment to reunification. One month later, respondent father tested positive for cocaine and opiates on three separate dates before failing to appear at a fourth scheduled test. Respondent father also was arrested for attempting to steal liquor from a store. After pleading guilty in mental health court, respondent father was transferred to an inpatient substance abuse program where he remained at the time of the termination trial.
Respondent father requested a guardianship for the child with his mother in lieu of termination. Petitioner opposed guardianship because it would not provide the child long-term permanence. The caseworker and the child's therapist also supported termination because the permanence would facilitate the child's ability to shed her hope that she could return to respondent mother, who continued to test positive for cocaine throughout the trial court proceedings. The child's therapist was also concerned about the child's awareness of her parents' substance abuse and criminal activity. At the conclusion of trial, the trial court terminated both respondents' parental rights.
On appeal, respondent father contends that the trial court erred by finding that a statutory ground for terminating his parental rights had been met in light of the fact that the child was placed with a relative. Respondent father also argues that petitioner did not include him in the goal of reunification. We disagree.
A trial court may terminate a parent's parental rights if it finds that at least one of the statutory grounds set forth in MCL 712A.19b(3) has been established by clear and convincing evidence. In re Van Dalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). We review for clear error a trial court's determination that the petitioner established a statutory ground by clear and convincing evidence. In re Olive/Metts, 297 Mich App 35, 40-41; 823 NW2d 144 (2012). A trial court's finding is clearly erroneous when, on the entire record, we are left with the definite and firm conviction that a mistake has been made. Id. at 41.
In this case, the trial court terminated respondent father's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g) and (j). Those sections provide, in pertinent part:
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.
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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.
We note that only one statutory ground for termination need be established to justify termination of parental rights. In re Olive/Metts, 297 Mich App at 41. In this case, however, clear and convincing evidence supported the trial court's decision to terminate respondent father's parental rights under all three statutory sections. First, clear and convincing evidence shows that the conditions that led to the adjudication did not improve. Although respondent father made some improvement in his interactions with the child during parenting visits, his attendance was inconsistent. Respondent father's relapse into substance abuse and his arrest shortly before the termination hearing interrupted the positive effect of the prior period of sobriety. According to the psychologist who evaluated respondent father, this relapse complicated treatment of respondent father's other behavioral health diagnoses in addition to solidifying a pattern of drug use. Similarly, respondent father's arrest at around the same time as the relapse continued his long pattern of criminal activity which began in 1990. In sum, the evidence supports the trial court's conclusion that the conditions that led to adjudication did not improve and even worsened with respect to substance abuse, and were not likely to be rectified within a reasonable time considering the child's age. See In re LE, 278 Mich App 1, 27; 747 NW2d 883 (2008).
For the same reasons, the trial court did not err by determining that termination was warranted under subsection (3)(g), finding that respondent father had failed to provide proper care or custody for the child and there was no reasonable expectation that he would be able to do so within a reasonable time considering the age of the child. In addition to respondent's substance abuse and continuing pattern of criminal activity, respondent admitted that he was too busy to care for the child. Respondent's apartment was too small to accommodate the child, and respondent expressed no intention to find more suitable housing. These circumstances combined to show that respondent father could not provide proper care or custody for the child and was not reasonably likely to be able to do so within a reasonable time considering the child's age. See In re Frey, 297 Mich App 242, 246-247; 824 NW2d 569 (2012) (affirming termination under MCL 712A.19b(3)(g) because the parents demonstrated an inability to stay sober and to avoid criminal activity). For the same reasons, the trial court also did not err by finding a reasonable likelihood of harm to the child if placed with respondent father. See In re Utrera, 281 Mich App 1, 24-26; 761 NW2d 253 (2008) (concluding that respondent's instability, a continuing lack of judgment, insight, and empathy for the child, sufficiently supported termination pursuant to MCL 712A.19b(3)(j)).
Respondent argues, however, that he provided proper care by agreeing to the relative placement, which defeats the need for termination. We disagree. We acknowledge that termination is not required if the "child is being cared for by relatives." MCL 712A.19a(8)(a). Relative placement does not preclude termination, however. Rather, it is "an explicit factor to consider in determining whether" to terminate parental rights. In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). In In re Mason, our Supreme Court faulted the trial court for failing to consider "whether respondent could fulfill his duty to provide proper care and custody in the future by voluntarily granting legal custody to his relatives during his remaining term of incarceration." Id. at 163. That is, a relative placement is appropriate in place of termination when a parent is temporarily incapacitated, such as through illness or incarceration. By contrast, in this case respondent father failed to benefit from the services provided, as demonstrated by his relapse into substance abuse and criminality months after the initial adjudication, indicating more than a temporary incapacitation.
Respondent father also contends that petitioner did not provide services to him because it never identified reunification with him as a goal. We disagree, given that the record shows otherwise. Petitioner included respondent in reunification efforts, as demonstrated by the caseworker's updates about both parents at the review hearings. The caseworker confirmed respondent father's willingness to engage in reunification efforts and accordingly recommended that he attend supervised parenting time, which was then provided and was scheduled to accommodate respondent father's schedule. Petitioner provided respondent father with services intended to address the substance abuse and behavioral health issues. Finally, the caseworker coordinated with respondent father's mental health court probation officer to avoid duplicating services. Thus, we reject respondent father's argument that petitioner did not include him in the goal of reunification.
"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 at 40, citing MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). In considering whether termination of parental rights is in the best interests of the child, the trial court should consider a wide variety of factors including, potentially, the existence of a bond between the child and the parent, the parent's ability to parent, the child's need for permanency, stability, and finality, the advantages of a foster home over the parent's home, the parent's compliance with his or her service plan, the parent's visitation history with the child, the child's well-being in care, and the possibility of adoption. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). When a child is placed with a relative, that relative placement is a factor to be considered when determining whether termination is in a child's best interests. In re Olive/Metts, 297 Mich App at 43. We review the trial court's determination that termination is in the child's best interests for clear error. Id.
When evaluating the child's best interests, the trial court in this case considered the relative placement and that the child was doing well with her grandmother. The trial court further considered the testimony of the child's therapist that the child needed a permanent, stable environment to aid her development, and the therapist's conclusion that this favored termination over guardianship. The trial court further noted the testimony of the child's therapist that she saw the child improve once the goal changed to termination, which provided the permanency and stability that she needed to focus on her own growth. In sum, the trial court did not err in determining that the child's need for permanence and stability and her improvement while living with her grandmother, combined with respondent father's continued substance abuse and criminal activity, supported termination. See In re Frey, 297 Mich App at 248-249.
Affirmed.
/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Michael F. Gadola