Opinion
No. 342388
10-18-2018
In re GAILEY, Minors.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2015-832567-NA Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ. PER CURIAM.
Respondent mother ("respondent") appeals as of right the trial court's order terminating her parental rights to her four minor children under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (risk of harm to the child if returned to the parent). 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 first removed from respondent's and father's custody on June 25, 2015, based on a petition filed by the Department of Health and Human Services (DHHS) alleging neglect and "deplorable" living conditions. On the morning of June 25, the police department responded to a call reporting that one of the children had left the house and had gotten into a neighbor's car while father, who was supposed to be supervising the children, was asleep. The petition further alleged that, upon inspection, the home was without running water, had a shutoff notice for gas service, had electric extension cables running outside a window, and was infested with bedbugs. There was little to no food in the house, and the children were unbathed, had lice, and smelled of urine. The children's beds had no sheets or pillows, and the mattresses were filthy; the youngest child's bed was broken and posed a safety concern. The petition also alleged physical abuse by respondent against one of the children.
Over the five months preceding the children's removal, the family had been provided services, including family support services, food assistance, referrals for utility assistance, and information regarding shelters. Additionally, in both 2015 and 2017, each member of the family underwent evaluation by Dr. Melissa Sulfaro, an expert in clinical psychology. During her testimony, Dr. Sulfaro indicated that all three of the older children reported some form of physical abuse in the home at the hands of father. The oldest child exhibited symptoms of possible attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder. The second oldest child had been diagnosed with ADHD and autism spectrum disorder. Dr. Sulfaro's own testing confirmed that he was within the clinical range for oppositional defiant disorder, withdrawal, depression, rule breaking behavior, aggressive behavior, and thought and conduct problems. The third oldest child had also been diagnosed with ADHD and had an individualized educational plan in place at school. Dr. Sulfaro was unable to gather sufficient relevant information from the youngest child due to her age. Finally, Dr. Sulfaro opined that none of the children exhibited any sign of improvement between 2015 and 2017.
The youngest child was not evaluated by Dr. Sulfaro in 2015.
On July 10, 2015, respondent and father pleaded to the allegations set forth in the petition. The trial court took jurisdiction over the children and ordered that both parents be permitted supervised visits, with discretion granted to DHHS and the guardian ad litem (GAL) to permit unsupervised visits. The trial court also directed DHHS to present the parents with a case service plan that included requirements to obtain housing, employment, and sources of income, and to participate in services such as parenting classes.
In the following months, respondent demonstrated compliance with the treatment plan. The only barrier to reunification with the children was adequate housing, as respondent was living in a shelter through April 2016. However, by May 2016, respondent and father obtained adequate housing in a mobile home, and the two oldest children were returned soon afterward. The two younger children returned home in August 2016. Three months later, in November 2016, a case worker reported issues regarding the children's behavior that had resulted in five complaints to Children's Protective Services (CPS) within one month. Additionally, the home had again developed an infestation of bedbugs. The trial court initially ordered that the children be removed from the home until fumigation could be completed; however, the family instead temporarily moved into a hotel.
On December 20, 2016, the trial court removed the children from respondent's and father's custody for the second time based on allegations of physical abuse by father against one of the children and of sexual abuse by one of the children against his younger sister. DHHS further alleged that respondent was aware of the abuse but took no action to prevent it. At this time, DHHS filed a supplemental petition seeking termination of respondent's and father's parental rights. Initially, respondent and father were permitted supervised parenting time, but on February 13, 2017, the trial court suspended parenting time pending psychological evaluation of the children.
Between June 9, 2017, and December 27, 2017, the trial court conducted a series of disposition hearings, treating each hearing as a continuation of a larger termination proceeding. The trial court took testimonial evidence during these hearings before delivering its ultimate oral opinion on the record on December 27, 2017. The trial court found by clear and convincing evidence that the statutory grounds for termination under MCL 712A.19b(3)(c)(i), (g), and (j) were established by clear and convincing evidence. It further determined by a preponderance of the evidence that it was in the children's best interests to terminate respondent's and father's parental rights.
On appeal, respondent contends that the trial court erred in finding that termination was in the children's best interests. We review for clear error decisions terminating parental rights. In re Trejo, 462 Mich 341, 357; 612 NW2d 407 (2000). "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). We review de novo the trial court's interpretation and application of statutes and court rules. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
When a trial court orders that parental rights be terminated, it must first find by clear and convincing evidence that one or more of the statutory grounds for termination set forth in MCL 712A.19b(3) has been met. In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). If the trial court finds that these statutory grounds exist, and further determines by a preponderance of the evidence 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.' " In re Moss, 301 Mich App 76, 83; 836 NW2d 182, quoting MCL 712A.19b(5). In evaluating the child's best interests, the trial court considers a wide variety of factors, including, as applicable, the existence of a bond between the parent and the child; the parent's ability to effectively parent; the child's need for permanency, stability, and finality; the advantages of a foster home over the parent's home; a parent's history of domestic violence; a parent's compliance with the case service plan; the parent's visitation history; and the child's well-being while in care. In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014).
Respondent first contends that the trial court erred by failing adequately to take into consideration her strong bond with the children and her ability to parent, both of which weigh in favor of retention of parental rights. We disagree. First, respondent's bond with the children was undisputed by the parties and was acknowledged by the trial court. However, the trial court credited Dr. Sulfaro's testimony that although a bond existed between respondent and the children, it was ultimately more harmful than beneficial to the children due to the dysfunctional nature of the family dynamic. This Court defers to the trial court's discretion in rendering credibility determinations. Rains v Rains, 301 Mich App 313, 329; 836 NW2d 709 (2013). As such, the trial court did not clearly err in determining that this factor weighed in favor of termination.
Second, with respect to her ability to parent the children, respondent highlights her efforts to attend to their special needs and to comply with the case service plan. However, Dr. Sulfaro opined that respondent had a long history - in spite of receiving services - of being unable to provide adequate monitoring, structure, or stability for the children, which contributed to the children's severe behavioral issues. Dr. Sulfaro's assessments also revealed the parents' history of aggression toward the children and toward each other, from which the children learned to model that behavior. Though respondent complied with the case service plan and completed parenting classes, Dr. Sulfaro reported that respondent became overwhelmed and was unable to use the techniques she should have learned through those classes. Further, Dr. Sulfaro's impression after evaluating respondent was that there were no services that would enable respondent to rectify these issues within a reasonable amount of time. This testimony is consistent with that of Jodi Nicoletti, the family's foster care worker between August 2015 and May 2016. Ms. Nicoletti testified that while respondent had benefitted from parenting classes in some respects, her visits with the children were "chaotic" and that respondent's techniques to redirect the children were ineffective. Thus, in spite of respondent's best efforts, she was unable to demonstrate adequate parenting skills, particularly in light of the fact that three of the children have special needs. See In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005) ("[I]t is not enough to merely go through the motions; a parent must benefit from the services offered so that he or she can improve parenting skills to the point where the children would no longer be at risk in the parent's custody.").
The trial court did not specifically address on the record respondent's ability to parent when evaluating the children's best interests. However, we nonetheless address respondent's arguments in this regard on appeal because the issue was raised before the trial court. See Loutts v Loutts, 298 Mich App 21, 23-24; 826 NW2d 152 (2012).
In addition to concluding that termination of parental rights would be in the children's best interests, Dr. Sulfaro also opined that it would be in the children's best interests to be placed into separate homes, as they "feed off of each other in terms of behavior issues." --------
Respondent contends that she was not afforded adequate time to corral her children in the unfamiliar visitation rooms and notes that her difficulties were attributable not to her lack of parenting skills but rather to the children's special needs. However, respondent's own testimony illustrates that she struggled to manage the children's behavior even while they were in her custody. For example, respondent testified that when the children were returned home in 2016, they were rambunctious, were constantly fighting, and that she constantly had to "chase them down." She further admitted that on two occasions when she was unable to redirect the children, she dropped to her knees and cried. On another occasion when a child misbehaved and disregarded respondent's reprimands, she called the police in order to "teach him a lesson." Ultimately, the focus of the Court's inquiry at the best interests stage is on the rights and welfare of the child and not of the parent. In re Moss, 301 Mich App at 87-88. In the present case, the evidence demonstrates that respondent was simply not equipped to manage the children's special needs, in spite of receiving services aimed at educating her on such skills. Respondent cites to no authority for the proposition that she is entitled to greater leniency because her children have special needs. Accordingly, though not specifically resolved by the trial court, we conclude that respondent's inability to parent the children further supports the trial court's determination that termination is in the children's best interests.
In concluding that termination was in the children's best interests, the trial court primarily emphasized the children's need for permanency, stability, and finality. It found that, although the case had been ongoing since 2015, respondent continued to struggle with maintaining suitable housing and effectively managing her finances. Further, respondent had no plan in place to rectify these issues. Upon review of the evidence, we find that the trial court's conclusions are supported. Though respondent and father purchased a mobile home in May 2016, respondent relinquished it in September 2017 to her landlord in order to settle a dispute regarding late lot rent. At the time of the disposition hearings, respondent and father were both employed but were living with respondent's sister, as they had not yet secured new housing. Respondent and father were searching for housing; however, respondent testified that their only option was a temporary, month-to-month lease at an extended-stay hotel. And though respondent and father incurred no bills while living with respondent's sister, they had saved no money. During father's testimony, he was unable to account for how their earnings had been spent during this time. Finally, while respondent recognized that she would need a greater income to support four children, she testified that she had not applied for a promotion to a managerial position at work because she did not wish to be responsible for others. Accordingly, the trial court's findings that respondent lacked suitable housing and effective financial management skills - and that she had no plan in place to address these issues - are not clearly erroneous.
In contrast to respondent's inability to provide permanence or stability, the trial court discussed that the children were in stable foster homes and had bonded with foster parents who were willing to adopt them. Respondent correctly contends that the trial court erred in stating that all four children were in foster care at the time of termination. Rather, the record reflects that the three oldest children were in residential placement, while only the youngest child remained in foster care.
Although the trial court clearly erred in finding that all of the children were in foster care, it nonetheless reached the correct determination that the children's interests in permanency and stability weighed in favor of termination. See Demski v Petlick, 309 Mich App 404, 441; 873 NW2d 596 (2015), citing Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000) ("[T]his Court will affirm when the trial court reaches the right result for the wrong reason."). During the course of the case, the children were removed from respondent's custody twice. Respondent herself had at least five different residences during the pendency of the case and, as discussed above, failed to demonstrate that she would be able to find a suitable and permanent home in the future. Meanwhile, CPS worker Jonathan Johnson testified on June 30, 2017, that the youngest child's foster placement was satisfactory but that the older children's current foster placements were not ideal for the long term. Though the foster parents voiced their desire that the older children not be removed from their care, Mr. Johnson felt they required foster parents capable of providing a greater degree of treatment and support to accommodate their special needs. Foster care worker Melody McLean testified that DHHS was searching for but had been unable to find appropriate foster placements; accordingly, it began considering residential or shelter placements. This testimony demonstrates that DHHS was affirmatively taking steps toward finding appropriate long-term placements for the children. We thus conclude that the trial court did not err in finding that the children's interest in permanency and stability weighed in favor of termination.
Respondent next claims that the trial court failed adequately to consider potential placement of the children with relatives. This Court has previously held that "because 'a child's placement with relatives weighs against termination under MCL 712A.19a(6)(a),' the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests." In re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012), quoting In re Mason, 486 Mich at 164. In the present case, the children were not placed with relatives. In fact, DHHS represented before the trial court that when it contacted the three relatives suggested by respondent, only one was willing to provide placement for one of the children. DHHS further explained to the trial court that this relative was deemed an unsuitable placement option by DHHS and the GAL because no preexisting bond existed between the relative and the children and because the children required a caregiver with a professional ability to care for their serious behavioral needs. We therefore reject respondent's argument that the trial court erred in declining to consider relative placement in lieu of terminating her parental rights.
Finally, respondent contends that the trial court clearly erred by failing to make individualized factual findings with respect to each child's best interests. As articulated by this Court in In re White, 303 Mich App at 701, the trial court has a duty to decide the best interests of each child individually only when those interests significantly differ:
We conclude that this Court's decision in In re Olive/Metts stands for the proposition that, 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. It does not stand for the proposition that the trial court errs if it fails to explicitly make individual and - in many cases - redundant factual findings concerning each child's best interests.In the present case, the dysfunction within the family and the lack of suitable housing affected the children equally. Likewise, the children were equally in need of permanence and stability, which respondent was unable to provide. Because the children's best interests did not significantly differ, the trial court was not obligated to make redundant factual findings relative to each child's best interests. Therefore, we hold that the trial court did not clearly err in its determination that termination of respondent's parental rights was in the best interests of the children.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Deborah A. Servitto
/s/ Michael F. Gadola