Opinion
No. 331783
01-19-2017
In re FORVILLY, Minors.
UNPUBLISHED Delta Circuit Court Family Division
LC No. 15-000163-NA Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent mother appeals by right the trial court's order terminating her parental rights to the three minor children pursuant to MCL 712A.19b(3)(g) (failure to provide proper care or custody) and MCL 712A.19b(3)(j) (risk of harm if returned to parent). We affirm.
I. FACTS
Respondent lives in Florida, and prior to that she had lived in Escanaba. In July 2015, while in Green Bay, Wisconsin, with her minor children (all under six years old), respondent decided spontaneously to travel to Florida to visit her sister unannounced. Respondent and the children traveled by bus to Orlando, which respondent estimated took "five or seven days," arriving on July 24th. Upon arrival, respondent contacted her sister. Respondent's sister initially declined to drive three to four hours from her home to Orlando to pick up respondent from the bus stop, but was persuaded to do so upon speaking with her mother. Respondent's sister testified that she and her boyfriend met with police officers at a gas station near the bus stop in an attempt to convince the officers that respondent "couldn't leave the state of Michigan without permission from the kids father." Respondent's sister said "the hope" was that she would be able to take the children. After the police officers declined to authorize that course of action, respondent's sister and her boyfriend met up with respondent and the children and began driving them to respondent's sister's home. Respondent's sister described the children as "very dirty, very tired." One of the children was soaked in urine, respondent only had a single bag of clothes for all, she was carrying some bread, a quart of milk, and cans of alcohol, respondent indicated that, working from a street corner, she could make some money performing oral sex, and she made strange and bizarre comments, e.g., that people were watching her.
Respondent was awarded full custody of the children in 2012. Respondent and the children's father never married. His parental rights are not at issue in this appeal.
During the trip, respondent's sister and her boyfriend determined that respondent could not stay with them and relayed that to her under the guise that they were "going out of town for a work meeting." Respondent purportedly "flipped out" and caused the vehicle to "rock[]" "back and forth" on the freeway. Respondent's sister's boyfriend exited the freeway before reaching the sister's home and entered a hotel parking lot. Emergency services were called after respondent attempted to hit her sister and her boyfriend. After speaking with the police, it was agreed that the children would go with respondent's sister and that respondent would spend the night in a hotel. According to respondent, "the deal" was that the children would stay with her sister until respondent "had gotten on my feet."
Respondent's sister and her mother began making arrangements for the children to return to Michigan, and the children's father traveled to Florida for that purpose a week after they had first arrived. Respondent's sister said that respondent called a couple times during that week to request money and that respondent spoke to the children "probably one time." Respondent did not call again until two weeks later, at which time her sister told her that the children had returned to Michigan. Respondent's sister said that respondent was initially "fine with it" but at a later date "went crazy," and was "yelling about why the kids were up there and why they got up there." Although efforts were made to keep the children with their father, circumstances dictated that they be placed with another of respondent's sisters in Michigan.
Respondent was encouraged by Child Protective Services to return to Michigan. However, respondent consistently maintained that the children should be returned to her in Florida. Petitioner sought a temporary wardship over the children in September 2015. The petition was amended in November 2015 to request that respondent's parental rights be terminated. Following a trial, the trial court found sufficient evidence to assert jurisdiction over the children. An evidentiary hearing was held a little over one week later, and following the close of proofs, the court found clear and convincing evidence to terminate respondent's parental rights. "Clearly, her past conduct, as well as her capacity, show that if the children were returned to her, they would be harmed as she is unable to support them, has no home for them, and this has gone on since July 24th, at least," the court explained. The court also found that "since July 24th [respondent] has done little, if any[thing], to provide proper care and custody of these children" and that "[t]here is no reasonable expectation that she will be able to provide proper care and custody within a reasonable time." The court noted that contrary to respondent's counsel's suggestion, respondent had "never advanced" the possibility of returning to her Michigan apartment; rather, "[s]he's consistently said she's going to stay in Florida."
Respondent attended the adjudication trial and the termination hearing by telephone from Florida.
The court also concluded that termination would be in the children's best interests. The court found that "[t]he children are not bonded with their mother, they don't look forward to the phone calls. They fear going back with the mother." The court further found that the children "need permanency" and acknowledged that "there will be some wait to see if [their father] can re-establish [a] fit home." Thus, "despite the placement with the relative [i.e., respondent's sister in Michigan]" the court found termination of respondent's parental rights to be in the children's best interests.
II. ANALYSIS
A. JURISDICTION
Respondent first argues that the trial court erred in exercising jurisdiction over the children. Respondent did challenge the court's assumption of jurisdiction, arguing at the trial that, "under the rather peculiar circumstances," the court should "find a lack of jurisdiction." This Court reviews "the trial court's decision to exercise jurisdiction for clear error in light of the court's findings of fact." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004).
Child protective proceedings are governed by the Juvenile Code, MCL 712A.1 et seq. In re AMB, 248 Mich App 144, 178; 640 NW2d 262 (2001). "To acquire jurisdiction, the factfinder must determine by a preponderance of the evidence that the child comes within the statutory requirements of MCL 712A.2[.]" In re Brock, 442 Mich 101, 108-109; 499 NW2d 752 (1993); see also MCR 3.972(C)(1). "[T]he rules of evidence generally apply" to a trial held to determine if there are statutory grounds for jurisdiction, "i.e., an adjudication." In re Sanders, 495 Mich 394, 405; 852 NW2d 524 (2014).
The trial court found sufficient evidence to assert jurisdiction over the children pursuant to MCL 712A.2(b)(1) and (2), which provide as follows:
The court has the following authority and jurisdiction:
* * *
(b) Jurisdiction in proceedings concerning a juvenile under 18 years of age found within the county:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .
* * *
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
Specifically, the trial court ruled that respondent had "fail[ed] to provide, when able to do so, support, education, medical, surgical, or other necessary care for health or morals," that there had been "abandonment" of the children, and that respondent had provided an "unfit home environment . . . ." The first two findings are encompassed by MCL 712A.2(b)(1), which provides numerous bases upon which a court can assert jurisdiction. An "unfit home environment" relates to MCL 712A.2(b)(2).
On appeal, respondent argues that the trial court erred in finding abandonment and "unfitness of the home." Even assuming respondent is correct, however, she does not address the third finding made by the trial court that respondent neglected or refused to provide proper care and support. Accordingly, respondent has failed to show an error with respect to the court assuming jurisdiction over the children. Moreover, there was adequate evidence to support the trial court's findings of an unfit home environment, given the condition of the Michigan home. For purposes of the adjudicative phase, the court did not err in exercising jurisdiction over the children.
In the context of abandonment, respondent contends that there were Florida police and child protection reports that petitioner never obtained and provided to the trial court, which reports would have shown that there effectively was no abandonment of the children in Florida. Petitioner argues that it attempted to procure the reports without success, assuming that they even existed, that the trial court concluded that any such reports would have added little to its rulings, and that respondent fails to explain why she could not have obtained the alleged reports, given her presence in Florida. Ultimately, abandonment did not serve as a statutory basis for the court's termination ruling and, as to adjudication, other grounds sufficed to exercise jurisdiction. --------
B. STATUTORY GROUNDS AND BEST-INTEREST DETERMINATION
Respondent next argues that the trial court clearly erred in finding that the statutory grounds for termination of her parental rights were established by clear and convincing evidence and in finding that termination of her parental rights was in the children's best interests. If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). "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). In applying the clear error standard in parental termination cases, "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
The trial court terminated respondent's parental rights under MCL 712A.19b(3)(g) and (j), which provide as follows:
(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:
* * *
(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.
* * *
(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.
1. MCL 712A.19b(3)(g)
Although "Michigan traditionally permits a parent to achieve proper care and custody through placement with a relative," In re Mason, 486 Mich 142, 161 n 11; 782 NW2d 747 (2010), the trial court did not clearly err in finding that respondent did not provide proper care or custody for the children. As discussed, respondent did not place her children with her sister in Florida as much as she forced her sister to take the children out of concern for their safety. Respondent's sister testified that after she took the children in, respondent called a few times, "[m]ostly [about] money," during the following week and spoke to the children "probably one time." Respondent's sister answered in the negative when asked if respondent "ever sen[t] any money, goods, supplies, or anything for the benefit of the children." Respondent's sister in Michigan, with whom the children were placed after being removed from their father's care and custody, similarly testified that respondent did not send "any supplies or care packages" to her or her mother.
And although respondent has requested that the children be returned to her in Florida, she effectively conceded that she cannot provide proper care or custody for them due to her lack of appropriate housing and income. The trial court did not clearly err in finding that MCL 712A.19b(3)(g) had been established by clear and convincing evidence.
2. MCL 712A.19b(3)(j)
The trial court did not clearly err in finding a reasonable likelihood that the children would be harmed if returned to respondent. As of the termination hearing, respondent was living in an apartment with a "friend" she met "on the street." Respondent admitted that the apartment was too small for the children. Respondent also admitted to having no suitable income to support the children. Respondent indicated that she intended to pursue "trying out for the softball team, basketball team" in Florida, a job opportunity unavailable to her in Escanaba. Respondent further indicated that "whether it be in sports or whether it be in job management, I fe[e]l I'll be able to prosper here more than if I were in Escanaba." However, she gave no reason to think that she would soon be obtaining employment of any kind.
In addition, the testimony showed respondent has an ongoing history of engaging in erratic behavior and possibly was experiencing a break with reality. At the adjudication, the sister with whom the children were placed recalled an incident earlier that year when respondent was "saying weird things like, 'Somebody is after the boys.' " Further, respondent's sister in Florida said that when the police were questioning respondent, respondent "was just saying things to them like, um, 'They have mikes on them, people are watching me.' " There were indications in the record that respondent's behavior was induced or contributed to by substances, including alcohol. A period of instability in the parent's life bears on the parent's current capacity to provide proper care. In re Utrera, 281 Mich App 1, 25; 761 NW2d 253 (2008) ("Any rational evaluation of the evidence must take into account [a] respondent's lengthy history of instability as relevant to her current capacity to provide proper care for the child.").
In sum, there was ample evidence that a reasonable likelihood existed that the children would be harmed if returned to respondent's care.
3. BEST INTERESTS
With respect to the children's best interests, we place our focus on the children rather than the parent. In re Moss, 301 Mich App at 87. The trial court may consider such factors as "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 35, 41-42; 823 NW2d 144 (2012) (citations omitted).
Respondent argues that the best-interest decision was erroneous because the children's father's "prospects" for completing the goal of reunification with the children "seem dim." At the time of the termination, the father had recently received a nine-month sentence after pleading guilty to possession of heroin. The trial court was, of course, aware of this and acknowledged that "there will be some wait to see if [the father] can re-establish [a] fit home." But the trial court thought the children's need for permanence would best be served by terminating respondent's parental rights. The court believed the children's lives "would certainly be extremely chaotic if the court did not terminate the mother's rights at this stage of the proceeding." The trial court reasoned that "[w]e'd have the children wondering if they are going to go with mom, are they going to go with dad, . . . are they going to be adopted by the aunt[,] or what's going on." Given the evidence showing the absence of a bond between respondent and the children and respondent's erratic behavior, there was no clear error.
The trial court also found that respondent had "been offered a voluntary case plan several times by the department. They've suggested she come back here, they've talked to her about the things she could do or should." We note that there is nothing in the record to suggest that respondent would be willing to return to Michigan and participate in and benefit from a case-service plan. Indeed, we find compelling in this case the fact that respondent failed to return to Michigan to fight for her children, reflecting no real desire to retain her parental rights.
The court acknowledged that the children's relative placement weighed against termination of parental rights, as indicated in Olive/Metts Minors, 297 Mich App at 43, but nonetheless determined that it was in the children's best interests to terminate respondent's parental rights considering all of the surrounding circumstances. We find no clear error in that determination.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Amy Ronayne Krause