Opinion
No. 344420 No. 344425
01-22-2019
In re H. S. GRIFFOR, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 14-516636-NA Before: GLEICHER, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.
In Docket No. 344420, respondent mother appeals as of right an order terminating her parental rights to the minor child under MCL 712A.19(b)(3)(c)(i), (c)(ii), (g), and (j). In Docket No. 344425, respondent father appeals as of right the same order, which also terminated his parental rights to the minor child under MCL 712A.19(b)(3)(c)(i), (c)(ii), and (g). We affirm.
Before this case began, respondent mother and respondent father were not living together, and the minor child was living with respondent mother. Both respondent mother and the minor child lived with respondent mother's mother, Glenda Bucki. In December 2015, the minor child was removed from respondent mother's home after the police discovered a marijuana-growing operation in the home. The trial court subsequently took jurisdiction over the child based on respondent mother's admissions that she was aware of Glenda's marijuana-growing operation, and that she failed to provide needed equipment for the child's medical condition. Respondent father also admitted his awareness of the marijuana-growing operation and that he failed to investigate the child's medical needs. Respondents were provided with numerous services and treatment pursuant to their case services plans. While they made some progress, the trial court found that, after more than two years, they both continued to lack suitable housing, and respondent mother's mental health issues and respondent father's conviction for aggravated indecent exposure involving a child presented additional barriers to reunification. Accordingly, the trial court terminated both respondents' parental rights to the child. This appeal followed.
I. DOCKET NO. 344420
Respondent mother contends that the trial court violated her constitutional right to parent her child. We disagree.
A. STANDARD OF REVIEW
"Generally, whether child protective proceedings complied with a respondent's substantive and procedural due process rights is a question of law that this Court reviews de novo." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014).
B. CONSTITUTIONAL ANALYSIS
"The Due Process Clause provides heightened protection against government interference with certain fundamental rights and liberty interests." In re B & J, 279 Mich App 12, 22; 756 NW2d 234 (2008) (quotation marks and citation omitted). "It is undisputed that parents have a fundamental liberty interest in the companionship, care, custody, and management of their children." Id. at 23. "In order to comply with the guarantees of substantive due process, the state must prove parental unfitness by 'at least clear and convincing evidence' before terminating a respondent's parental rights." Id. (quotation marks and citation omitted). "Michigan law fully comports with this requirement, requiring proof of at least one statutory ground 'by clear and convincing evidence' before the family court may terminate a respondent's parental rights." Id., quoting MCL 712A.19b(3). "Once the petitioner has presented clear and convincing evidence that persuades the court that at least one ground for termination is established under subsection 19b(3), the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). Therefore, so long as petitioner satisfied its burden of establishing one ground for termination under MCL 712A.19b(3) by clear and convincing evidence, respondent mother's constitutional rights were not violated.
C. STATUTORY GROUNDS FOR TERMINATION
The trial court found that termination of respondent mother's parental rights was warranted under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). At the time of the termination, those provisions authorized termination under the following circumstances:
(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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, 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. [MCL 712A.19b(3).]
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. The current version of MCL 712A.19b(3)(g) replaces "without regard to intent" with "although, in the court's discretion, financially able to do so[.]"
With regard to MCL 712A.19b(3)(c)(i), at the time the termination hearing began in February 2018, more than 182 days had elapsed since issuance of the initial dispositional order. The conditions that led to the adjudication were that marijuana plants were illegally growing in respondent mother's home, of which she was aware, and the minor child did not have a needed apparatus for her medical condition due to a lack of funds. The trial court appropriately characterized these conditions as respondent mother's inability to provide proper care and a lack of suitable housing.
The initial dispositional order was entered on March 1, 2016
There was evidence that marijuana was no longer growing in the home in which respondent mother lived, but the house in which she resided remained unsuitable. Respondent mother continued to live with Glenda, who was on the central registry due to her growing marijuana that contributed to the abuse or neglect of the minor child. Glenda had appealed her status, but there was no evidence that she had been removed from the central registry. Moreover, while respondent mother testified that she could try to obtain Section 8 housing, there was evidence that she would not be able to care for the child on her own. Kenya Dobbins, the foster care program manager, testified that respondent mother was unable to manage the child's behavior and there was concern over her ability to care for the child given her emotional instability. Respondent mother testified that, before the child's removal, Glenda had helped care for the child when respondent mother was ill, and respondent mother believed that she would benefit from Glenda's continued assistance. Respondent mother also lacked transportation and a driver's license. Given respondent mother's lack of suitable housing, the trial court found that the conditions that led to adjudication continued to exist. And because respondent mother had over two years while this case was pending to obtain suitable housing and had not done so, the trial court did not clearly err by concluding that there was no reasonable likelihood that this condition would be rectified within a reasonable time given the child's age.
On appeal, respondent mother maintains that she had proper housing at the time of the termination hearing, but she fails to provide any support for that argument. See Blackburne & Brown Mortg Co v Ziomek, 264 Mich App 615, 619; 692 NW2d 388 (2004) ("Insufficiently briefed issues are deemed abandoned on appeal.") (Quotation marks and citation omitted.) Moreover, respondent mother's assertion is belied by the record. She also argues that the trial court violated her constitutional right to designate the child's caregiver by finding that her sister was unsuitable. There was evidence, however, that the sister was determined to be unsuitable because she provided falsified documentation when she was being assessed for placement. Respondent mother fails to address that evidence. Thus, respondent mother's arguments are unconvincing.
Because petitioner "presented clear and convincing evidence that persuade[d] the court that at least one ground for termination [was] established under subsection 19b(3)," and because the court's conclusion was proper, "the liberty interest of [respondent mother] no longer includes the right to custody and control of the [child]." In re Trejo, 462 Mich at 355. In other words, because the petitioner met its burden of proving at least one ground for termination by clear and convincing evidence, respondent mother's constitutional right to parent her child was not violated.
D. BEST INTERESTS
"The primary beneficiary of" the best-interest stage "is intended to be the child." In re Trejo, 462 Mich at 356. Our Supreme Court has explained that the best-interest requirement does not violate a respondent's due process, but "actually provides an opportunity to avoid termination, despite the establishment of one or more grounds for termination." Id. For thoroughness, we will address whether the trial court properly concluded that termination of respondent mother's parental rights was in the child's best interests.
"[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 In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014), this Court stated:
The trial court should weigh all the evidence available to determine the children's best interests. To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may include 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. 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. [Quotation marks and citations omitted.]
The trial court found that the minor child, who was four years old, required permanency, finality, and stability. The court also found that respondent mother's bond with the child was diminished, respondent mother had not secured housing, and respondent mother had not addressed her mental health issues. The trial court further found that no relative placement was suitable and adoption was the only viable permanency plan to provide stability and permanency.
Respondent mother maintains that it is in the best interests of the child to be raised by her parents, but, as stated above, the trial court must consider a variety of factors. With regard to the bond between respondent mother and the child, the trial court did not clearly err by finding that it was diminished. While there was evidence of a bond and that the child was happy to see respondent mother, there was also evidence that respondent mother did not visit consistently and that the child had little reaction when respondent mother missed visits. Moreover, the trial court did not clearly err by finding that, given respondent mother's lack of suitable housing and her ongoing mental health issues, she could not provide the stability and permanency needed by the child. Additional factors also weighed in favor of termination, including evidence that respondent mother could not manage the child's behavior, respondent mother's lack of compliance with her treatment plan, respondent mother's inconsistent visitation, the child's improved health while in care, and the foster parents' desire to adopt the child.
In sum, because the trial court did not clearly err by finding that petitioner presented clear and convincing evidence establishing a basis for termination under MCL 712A.19b(3), or by finding that termination of respondent mother's parental rights was in the minor child's best interests, the trial court's termination of respondent mother's parental rights did not violate her constitutional rights.
II. DOCKET NO. 344425
Respondent father contends that the trial court clearly erred by terminating his parental rights to the minor child because petitioner failed to carry its burden of establishing one statutory ground for termination by clear and convincing evidence and because termination was not in the child's best interests. We disagree.
A. STANDARD OF REVIEW
"To terminate parental rights, a trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 635; 853 NW2d 459 (2014) (quotation marks and citation omitted). "This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination. The trial court's factual findings are clearly erroneous if the evidence supports them, but [this Court is] definitely and firmly convinced that it made a mistake." In re White, 303 Mich App 701, 709-710; 846 NW2d 61 (2014) (footnote omitted). "A reviewing court must defer to the special ability of the trial court to judge the credibility of witnesses." In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014). "The trial court must order the parent's rights terminated if the Department has established a statutory ground for termination by clear and convincing evidence and it finds from a preponderance of the evidence on the whole record that termination is in the children's best interests." In re White, 303 Mich App at 713, citing MCL 712A.19b(5). This Court reviews "for clear error the trial court's determination regarding the children's best interests." Id.
B. STATUTORY GROUNDS FOR TERMINATION
The trial court found that termination of respondent father's parental rights was warranted under MCL 712A.19b(3)(c)(i), (c)(ii), and (g).
With regard to MCL 712A.19b(3)(c)(i), the trial court found that respondent father remained unable to care for the child because he lacked suitable housing. The trial court also found that, given respondent father's lack of housing and his conviction with the requirement that he register as a sex offender, there was no reasonable likelihood that he would be able to rectify the condition resulting in removal within a reasonable time given the child's age.
At the time the termination hearing began in February 2018, more than 182 days had elapsed since issuance of the initial dispositional order, which was entered on March 1, 2016. The condition that led to the adjudication was the marijuana grow operation in the home in which the minor child lived with respondent mother, of which respondent father was aware, and respondent father's failure to investigate the minor child's medical needs. As discussed earlier, the trial court characterized the conditions that led to adjudication as a lack of suitable housing and failure to provide proper care for the child.
At the time of the termination hearing, respondent father provided a video of an apartment he claimed to have rented, and two receipts: one showing payment of a deposit with respondent father's name on it, and the other showing one month's rent but without father's name on it. Respondent father did not provide a lease or other evidence showing that this housing was stable. The apartment was also not yet furnished. The trial court questioned how it could know that the apartment belonged to respondent father. As petitioner pointed out, the video only established that respondent father recorded the inside of an empty apartment; no one from the DHHS had an opportunity to view the apartment or determine whether it was suitable. Based on this evidence, the trial court concluded that respondent father "testified that he was in the process of obtaining housing," but failed to provide "adequate confirmation" that such housing was actually obtained and was appropriate. In light of the evidence in the record, we are not definitely and firmly convinced that the trial court erred by concluding that father failed to obtain adequate housing in the over two years that this case was pending. While it is a closer question of whether respondent father would be able to obtain suitable housing within a reasonable time, respondent father had over two years to obtain suitable housing. Yet by the time of the termination hearing, he could not provide a lease or otherwise establish that the housing he planned to obtain was stable and suitable for the minor child, and he only provided assurances that he would be able to furnish the apartment soon. On this record, the trial court did not clearly err by finding that respondent father would not be able to obtain suitable housing within a reasonable time, so termination was proper under MCL 712A.19b(3)(c)(i).
With regard to MCL 712A.19b(3)(c)(ii), the trial court found that respondent father's conviction for aggravated indecent exposure and its requirement that he register as a sex offender was another barrier to reunification. Respondent father's conviction arose from an incident that occurred while father was staying at a couple's home who had a 9 or 10-year-old daughter. Respondent father was apparently accused of masturbating outside of the daughter's room, but denied the allegation. Respondent father testified that he was using the bathroom located across the hall from the daughter's bedroom at 4:30 a.m. when "[t]he animal"—presumably referring to the couple's pet—"was pushing [the door] open and [respondent father] stepped out [into the hallway] while holding [his] genitalia." Respondent father testified that "[t]he parents were trying to say that their daughter saw it, but there was nobody awake at that time" and the hallway "was dark." Respondent father pleaded guilty to aggravated indecent exposure based on these events.
Respondent father testified that he was sentenced to two years' probation and had to register as a sex offender for the next 15 years, but he was not restricted from being around children. The trial court can take jurisdiction if a parent's home is "an unfit place" because of "criminality" or "depravity on the part of the parent." MCL 712A.2(b)(2). Father's guilty plea for aggravated indecent exposure involving a young girl was thus a condition that would have caused his daughter, who was four years old at the time of the termination hearing, to come within the court's jurisdiction. But another requirement of MCL 712A.19b(3)(c)(ii) is that "the parent . . . has been given a reasonable opportunity to rectify the conditions" that arose after the court took jurisdiction. Neither the trial court nor petitioner identify any services that respondent father received to ensure that he had the opportunity to show that it was safe for his daughter to be returned to his care, and, after review of the record, we cannot identify any such services. Thus, we cannot agree that petitioner proved MCL 712A.19b(3)(c)(ii) by clear and convincing evidence, and the trial court clearly erred by holding otherwise. Nonetheless, the error is harmless because only one statutory ground must be established. See In re Powers, 244 Mich App 111, 118; 624 NW2d 472 (2000).
With regard to MCL 712A.19b(3)(g), the trial court found that respondent father was unable to provide proper care and custody given his lack of housing and his status as a sex offender. As already explained, while respondent father's conviction for aggravated indecent exposure involving a young girl raises questions about whether he can provide proper care and custody for his daughter, he did not receive services to address those questions. Yet respondent father's lack of appropriate housing nonetheless supports the trial court's finding under MCL 712A.19b(3)(g). As discussed earlier, at the termination hearing, respondent father could not adequately show that he had suitable and stable housing and, without suitable housing, he could not provide proper care and custody for the child. And for the reasons already explained, there was no reasonable probability that he would be able to do so within a reasonable time given the child's age. The trial court thus did not clearly err by finding that petitioner had established grounds for termination under MCL 712A.19b(3)(g) by clear and convincing evidence.
Even so, the conviction still raises concerns about respondent father's potential unfitness to be around young children, especially because, before his conviction, he had been accused by both respondent mother and the child's foster parent of sexually abusing his daughter, though those allegations were never substantiated. But because these issues were not adequately developed in the trial court, they have no bearing on our decision. --------
C. BEST INTERESTS
The trial court also found that termination of respondent father's parental rights was in the child's best interests. The trial court found that the child required permanency, finality, and stability, and reasoned that, given respondent father had not obtained suitable housing and in light of the amount of time that he had to do so, only adoption would provide the child with the stability and permanency she needed. The trial court also reasoned that termination was in the child's best interests because her bond with respondent father had diminished.
With regard to the bond between respondent father and the child, Dobbins testified that respondent father and the child were bonded. There was little evidence, other than respondent father's missed visits, to support the trial court's finding that their bond was diminished. Nonetheless, other factors supported termination of respondent father's parental rights. The child was four years old at the time of termination and had been in foster care the majority of her life. As the trial court noted, its options were to either force the child to continue waiting for respondent father to show that he was capable of parenting the child—which the child had already been waiting two years and five months for respondent father to do—or to terminate respondent father's rights and look towards adoption. The child's foster parents indicated a desire to adopt her, and the child's health had improved while in their care. The child's foster parents had also provided the child with a stable and supportive home throughout much of these proceedings. In contrast, respondent father continued to lack suitable housing at the time of termination, and at no point demonstrated that he could provide a stable and permanent home for the child. While respondent father may have been on his way to obtaining housing, he could not establish that the housing was stable because he failed to provide a lease. In short, the child needed permanency, stability, and finality, and in the over two years that the child had been outside of respondent father's care, respondent father had failed to show that he could provide those things, whereas the child's foster parents showed that they were capable of providing permanency and stability and were willing to continue doing so by adopting the child. Thus, the trial court did not clearly err by finding by a preponderance of the evidence that termination of respondent father's parental rights was in the child's best interests.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien