Opinion
355797
08-12-2021
In re C. A. HALL, Minor.
UNPUBLISHED
Kent Circuit Court Family Division LC No. 19-051356-NA
Before: Tukel, P.J., and K. F. Kelly and Gadola, JJ.PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to the minor child under MCL 712A.19b(3)(g). Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
In June 2019, the Department of Health and Human Services (DHHS) petitioned the trial court to remove the infant, born May 28, 2019, from the parents' care, alleging that respondent was unable to provide proper care and custody because he was incarcerated, had issues with substance abuse, and had issues with housing instability. The infant was removed from respondent's custody and placed with a maternal aunt.
The petition also cited criminality and substance abuse by the infant's mother. Indeed, the infant was born premature and tested positive for multiple controlled substances at birth. Although the parental rights of the mother were also terminated, she is not a party to this appeal.
While respondent was in jail, awaiting trial, the DHHS was limited to providing him with services that included parenting worksheets and virtual parenting-time visits. Respondent consistently completed those services. In May 2020, respondent was released on bond. Thereafter, he completed a psychological assessment as well as a substance use assessment. However, respondent's participation in services waned; he failed to comply with the random drug screen requirement, admitted to smoking marijuana, and failed to attend face-to-face parenting-time visits with the child. His caseworker also stated that he demonstrated issues with housing instability and emotional instability. Respondent offered reasons why he could not engage in face-to-face visitation with the now one-year-old child including: (1) his employment with a temporary agency; (2) his high blood pressure or hypertension; (3) his doubt that he was the biological father of the minor child despite his prior completion of an affidavit of parentage; and (4) his belief that the minor child was "better off" with a relative.
Respondent eventually met with his caseworker for a meeting to schedule services for him to rectify his barriers to reunification with the child. However, soon after this meeting, respondent was incarcerated for missing a mandatory court hearing. As the criminal case progressed, respondent remained incarcerated and awaited his sentencing hearing. Consequently, the DHHS changed its goal from reunification to adoption. When the trial court found that the statutory ground for termination was established, respondent was still incarcerated and his sentence remained unknown. Ultimately, the trial court found that termination of respondent's parental rights was in the minor child's best interests. This appeal followed.
According to the Michigan Department of Corrections (MDOC), defendant pleaded guilty to a drug offense and, in February 2021, was sentenced to 20 months to 30 years' imprisonment.
II. AGENCY SERVICES
Respondent first alleges that the trial court erred by finding that petitioner had made reasonable efforts to rectify his barriers to reunification in light of his incarceration and the limited availability of services because of the COVID-19 pandemic. We disagree.
Generally, this Court reviews for clear error a trial court's finding that "reasonable efforts were made to preserve and reunify the family." In re Fried, 266 Mich.App. 535, 542-543; 702 N.W.2d 192 (2005). However, this Court reviews unpreserved challenges to the trial court's finding that reasonable efforts were made for plain error affecting substantial rights. See In re VanDalen, 293 Mich.App. 120, 135; 809 N.W.2d 412 (2011). Respondent did not object to the services at the time they were offered and, therefore, this issue was not preserved for appeal. See In re Frey, 297 Mich.App. 242, 247; 824 N.W.2d 569 (2012). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utera, 281 Mich.App. 1, 9; 761 N.W.2d 253 (2008).
Petitioner "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich. 79, 85; 893 N.W.2d 637 (2017). A parent's incarceration does not relieve the state of its duty to engage the parent. In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010). Consequently, DHHS must create a service plan as part of its reasonable efforts to reunify the family, which outlines the steps that the agency and the parent "will take to rectify the issues that led to court involvement and to achieve reunification." In re Hicks/Brown, 500 Mich. at 85-86 (quotation marks and citation omitted). Although petitioner "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich.App. at 248.
Respondent submits that caseworkers failed to make sufficient efforts to present services that would help him rectify his barriers to reunification particularly in light of the pandemic. However, the record reflects that, despite respondent's incarceration, he was offered monthly parenting homework assignments and virtual parenting-time visits with the minor child. Additionally, his caseworker testified that respondent could not qualify for other services while he was incarcerated, regardless of COVID-19, because his sentence was unknown. However, the trial court noted that when respondent was released on bond for approximately five months, he was offered and completed a psychological assessment and a substance use assessment. The trial court concluded that the COVID-19 pandemic actually benefited respondent because his assessments were scheduled in proximity to his release without a waiting period. Respondent was also referred to random drug screens to address his substance abuse barrier as well as face-to-face parenting-time visits to address his parenting skills barrier, but he refused both services. Respondent also did not take advantage of his caseworker's offer to provide him with bus passes and housing assistance. Although respondent's scheduled parenting class was cancelled because of the COVID-19 pandemic, his caseworker attempted to locate another parenting class to substitute for this cancellation.
Under the circumstances, respondent failed to demonstrate plain error affecting his substantial rights. A case service plan was prepared to address respondent's barriers to reunification with the minor child. Respondent participated in services, including parenting homework and virtual visits, to the extent his incarceration would permit. However, upon his release from jail, respondent did not fulfill his responsibility to participate in the offered services, but rather, his level of participation and communication decreased. See id. Accordingly, this claim of error does not entitle respondent to appellate relief.
III. STATUTORY GROUND FOR TERMINATION
Respondent contends that the trial court erred by finding that petitioner had proved that he failed to provide proper care and custody for the minor child, MCL 712A.19b(3)(g). We disagree.
"This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." In re White, 303 Mich.App. 701, 709; 846 N.W.2d 61 (2014). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011). When 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." Id.
The trial court terminated respondent's parental rights to the child under MCL 712A.19b(3)(g). That statute provides, in relevant part:
(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:
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(g) The 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.
"A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White, 303 Mich.App. at 710.
During the termination hearing, the trial court stated the following with respect to its findings on MCL 712A.19b(3)(g):
With respect to [respondent], he has the ability to have a job. He showed he was able to get employed, and I think even in his psychological or his substance abuse assessment he stated that-oh, his homework, he said he would have no problem getting a job and that was true. He was able to get a job. So I believe he would be able to financially care for [the child], but I believe that he has failed to provide proper care or custody for the child and there's no reasonable expectation that he would be able to provide proper care or custody within a reasonable time considering the age of the child. That language, within a reasonable time considering the age of the child, . . . I've always considered that language to mean from the [L]egislature that the younger the kids, the faster the parents have to act. Because if you have an 11-year-old who's in care for a year, that's not that big a chunk of that 11-year-old's life. If you have a one and-a-half-year-old who's spent one and-almost one-and-a half years in care, that's a huge, significant portion of that child's life. We all know that child development experts talk about bonding and everything else that's happening during those early year [sic]. And because of your decision making and your history, [respondent], and the choices that you've made, you have taken yourself out of your child's ability to care of [sic] him and to be able to provide proper care and custody.
Given the fact that we have no idea sitting here today either when you'll get out, when you'll be tried, when you'll have another opportunity, if you'll ever have another opportunity for bond, and I just don't think that that's going to happen. I believe that there is clear and convincing evidence that you will not be able to provide proper care or custody within a reasonable time considering the age of the child. Even if all-you know, heaven and earth moved and within June, that would still be he'd be in care for two months. And then you'd have to get out and establish a relationship with him which I'm guessing as [the caseworker], would take another six months, nine months, a year that he would just be languishing in care even though it's with a relative.
So I'm going to find that there is statutory grounds for termination under (3) (g) with respect to [respondent].
Respondent posits that his drug sentence would allow for his release within five months and that, give more time and resources, his ongoing ability to provide housing could be properly addressed as it was when he was released on bond. Although respondent engaged in services while incarcerated, upon his release, he failed to participate in the in-person visits with the child, failed to submit to random drug screens, and failed to maintain suitable housing. Respondent cited his health, his paternity, and the minor child's placement as excuses for not communicating or participating in his case service plan when released from jail. Because the minor child was nearly 18-months old at the time of the termination decision and had only viewed respondent through a computer screen since his birth in May 2019, there was no bond or relationship between the pair. Respondent's contention that his release from prison was imminent and more time and resources were necessary to reunite the pair is not justified by the record. The trial court did not clearly err in determining that the statutory ground was established. See id.
IV. BEST INTERESTS
Lastly, respondent contends that the trial court erred by finding that termination of his parental rights was in the minor child's best interests. We disagree.
"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 Minors, 297 Mich.App. 35, 40; 823 N.W.2d 144 (2012). "[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 N.W.2d 182 (2013). The trial court's ruling regarding best interests is reviewed for clear error. In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Ellis, 294 Mich.App. at 33.
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich.App. at 713. With respect to the children's best interests, this Court places its focus on the children rather than the parent. In re Moss, 301 Mich.App. at 87. "In deciding whether termination is in the child's best interests, the court may consider 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. at 41-42 (citations omitted). "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.
Respondent contends that, other than his criminal history, the allegations in the petition addressed the conduct of the minor child's mother, and the trial court "homed in" on the lack of parenting-time when respondent's bond with the minor child "could only improve." However, with regard to the best interests for the child, the trial court stated:
I do want to mention though that even though we found at least one statutory ground for [respondent] . . ., we don't stop there. We still have to determine whether or not it's in the child's best interest to move toward termination by a preponderance of the evidence. . . . In determining the child's best interest, the court may consider a variety of factors including the parent's history, which we've just talked about.
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Unfavorable psychological evaluations are something else that we can look at. . . .
And as we talked about, [respondent]'s psychological which I believe really underestimated his substance abuse issues because even the substance abuse assessment talked about his needs there. The psychological evaluation for him is potential anti-social personality disorder, potential cocaine use problems, and report of hypertension. The anxiety piece interestingly enough wasn't set forth on the psychological evaluation by Mr. Kieliszewski, but I believe that it was mentioned in the substance abuse assessment. Yep, cannabis use disorder; early remission, cocaine stimulates use disorder in early remission; mild, and unspecified anxiety disorder per history of self-report. But I do believe that the-that [respondent]'s inability to maintain on his medication really did have an impact on him.
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Inappropriate parenting techniques is something we also look at. Not seeing your child, being removed from their life, not having the opportunity to really visit with them and take advantage of all opportunities to visit. Even if you thought that you were sick or exposed to Covid, I think most people would've said I still want to see my child and I can't do it in person, so we have to do it virtually. I want to do it virtually. And I didn't hear that that request was made.
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I can also look at the parent's compliance with the treatment plan. The treatment plan required contact with the agency, doing visits, parenting classes, all the rest of those sorts of things. [Respondent] was able to get a job fairly quickly. He was able to find different places for housing. I think it was mentioned that he moved closer to his job but he couldn't afford the hotel. And then he was way out in Caledonia. I can't imagine, and I'm guessing you-if you rode your bike, you didn't ride it from Caledonia because that would take you forever.
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With respect to the child's wellbeing while in care, everything I've heard is he's doing well. He's going in for a sleep study because it's very odd. I'm troubled by the fact that he's waking up for hours in the middle of the night because that's not a normal thing for a one-and-a-half-year old and I'm guessing that's pretty disruptive. And I think it was even mentioned that in the one recent visit he had with [respondent], he was fairly lethargic, and I think stoic was the word that the worker used. So obviously something is disrupting that. I'm hoping-I'm hoping it's something that they come overcome very quickly.
The possibility of adoption, I believe that that does exist with respect to the maternal aunt.
The child's need for permanence and the length of time the child may be required to wait for the parent to rectify the conditions, which includes consideration of the child's age and particular needs. That is really probably the
heart of the situation here. . . . The need for permanence, I think that was kind of the debate that was going on between Ms. Baker and Ms. Jennings with respect to this child's been out of care for a year-and-a-half, almost 18 months. The child has been with this family. They are relatives. They don't want to go [sic] guardianship because they . . . tried guardianship last time and apparently it did not go very well. And so they believe that they need to have more permanence with respect to [the child.]
The length of time [the child] may be required to wait for the parents to rectify the conditions. And that's the part that I really have a hard time with because I think it might be a year or more, and then we're talking 28 months, and then 32 months, and then he's three, and then he's four, and then trying to interject somebody else in there. I-I wanted to talk also about the fact that a child's placement with relatives, some people argue ways against termination under this- under the statute because of the fact that the child is living with relatives when the case proceeds to termination is a fact, or to be considered in determining whether termination is in the child's best interest.
According to In re Mason, although the trial court can terminate parental rights in lieu of placement with relatives if it finds that termination is in the child's best interest, the fact that the children are in the care of a relative at the time of the termination hearing is an explicit factor to consider in determining whether termination in the child's best interest. And that's-that's what I'm looking at here. I'm trying to determine because that's one of the most important, I think, pieces that we need to look at. I think at this point in time, this child's life and his home, and his everything, is in the maternal aunt's home. To have him wait for another year, two years, however long it might be to take [respondent] for you to kind of rectify the circumstances that you find yourself in, I don't know if that's, given the age of this child and the facts that the statute talks about, given the age of the child, I don't know if that's appropriate. I understand that there's Covid. I understand that there [sic] are a relative placement. I understand all the rest of that. But I also understand that the best interest of this child have to control this part of the analysis. And I'm sure that you love your son very much. As this point in time, it appears however, that your ability to kind of control your life and the things that you're able to accomplish is something that is the utmost priority to you, and that your son unfortunately isn't the number 1 priority in your life right now and just can't be. I believe that even though this child is placed with a relative, the relative is not primed to say well, yeah. We'll just hang onto the kid until you get out and then we'll turn the kid over to you. That's not what I'm hearing here at all.
A review of the trial court's rationale for concluding that termination of respondent's parental rights was in the minor child's best interest reveals that it did not merely find a criminal history and lack of a bond. Specifically, the trial court stated that the child's lack of contact with respondent resulted in a failure for them to bond because of respondent's refusal to participate in face-to-face parenting-time, the amount of time it would take respondent to rectify his barriers including the uncertainty of his impending sentence, the child's well-being while in the care and custody of his maternal aunt, and respondent's unresolved substance abuse problems.
Furthermore, the trial court was presented with evidence that the child was doing well in his relative placement and that his family were attending to his needs, thereby demonstrating termination and adoption were in the child's best interests. See id. Additionally, respondent's failure to attend parenting-time visits and to complete his service plan demonstrate that reunification was not in the child's best interests. See id. Lastly, respondent did not demonstrate that there would be finality to his parenting deficits, including his substance abuse, which indicates that termination was in the child's best interests. See In re Olive/Metts Minors, 297 Mich.App. at 41-42. Given the information submitted in this case, the record supports that the trial court did not clearly err when it found by a preponderance of evidence that termination and adoption was in the child's best interests. Therefore, we are not left with a definite and firm conviction that a mistake has been made. See In re Ellis, 294 Mich.App. at 33.
Affirmed.