Opinion
No. 344156
11-15-2018
In re HALSEY/COLE, Minors.
UNPUBLISHED Lenawee Circuit Court Family Division
LC No. 14-000170-NA Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to the minor children, IH and DC, under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). Because there are no errors warranting relief, we affirm.
I. BASIC FACTS
In July 2014, the Department of Health and Human Services (DHHS) filed a petition asking the trial court to take jurisdiction over the children and terminate respondent's husband's parental rights, but it did not initially seek removal of the children from respondent's care. Following allegations that respondent used excessive physical discipline with IH, the children were removed from respondent's care and a supplemental petition was filed that included allegations related to respondent's use of excessive physical discipline.
Respondent and her husband pleaded to jurisdiction, and respondent was ordered to participate in a treatment plan that included individual counseling, a psychological evaluation, parenting classes, and substance abuse assessment. Respondent was also ordered to obtain and maintain suitable housing and a legal source of income. Respondent's husband was convicted of two counts of first-degree criminal sexual misconduct against his stepdaughter, IH. His parental rights were terminated. At his criminal trial, respondent testified that she suspected her husband might be sexually abusing IH, and she explained that she would check for signs of the abuse. However, despite her misgivings, the record reflects that prior to petitioner's involvement she continued to leave the children alone in her husband's care.
Consequently, in April 2015, petitioner filed a supplemental petition requesting termination of respondent's parental rights. Yet, because services continued to be offered and because respondent was cooperating with petitioner, in July 2015, petitioner withdrew the termination petition. By March 2016, over petitioner's objections, the trial court returned the children to respondent's care and ordered intensive, in-home family reunification services. Respondent, however, was unable to demonstrate an ability to properly care for the children, so the court found they were at risk in her care and granted petitioner's motion to change placement. The children were returned to their maternal grandmother. For a time, the permanency plan was to place the children in a subsidized guardianship. Ultimately, however, respondent refused to consent to the guardianship.
In January 2018, petitioner filed a petition seeking termination of respondent's parental rights. Following a termination hearing, the court found that the statutory grounds for termination of respondent's parental rights had been established by clear and convincing evidence. Thereafter, the court concluded that a preponderance of the evidence supported a finding that termination of respondent's parental rights was in the children's best interests. Accordingly, the court entered an order terminating respondent's parental rights to IH and DC.
II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
Respondent first argues that the trial court erred when it found that the statutory grounds for termination were established by clear and convincing evidence. In order to terminate parental rights, the trial court must find that at least one of the statutory grounds for termination has been established by clear and convincing evidence. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). This Court reviews the trial court's findings for clear error. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
B. ANALYSIS
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). These statutory provisions permit termination of parental rights when the following conditions are satisfied by clear and convincing evidence:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
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(ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home.
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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.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. The new version of the statute, not in effect when the order challenged in this appeal was entered, provides:
(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.
The children were removed from respondent's care in October 2014 after reports that respondent used excessive physical discipline on IH. However, even before their removal, the family had come to the attention of CPS as early as January 2013 amidst allegations that respondent's husband sexually abused IH. By March 2015, it was apparent that respondent suspected the abuse yet continued to leave her children in the care of the perpetrator. As a result of these revelations, petitioner filed a supplemental pleading in April 2015, alleging not only excessive physical discipline, but also that respondent failed to protect IH from the sexual abuse. Respondent was given over 3½ years to demonstrate that she could properly parent her children and keep them safe. Despite a multitude of services, at the time of the termination hearing, it was evident that respondent had failed to benefit from the services and had failed to demonstrate that she could safely and appropriately parent her children.
The record reflects that after the children's removal from respondent's care and after respondent had received over two years of services, the children were returned to her care in March 2016. At that time, respondent was given an opportunity to implement what she had learned from the treatment plan and demonstrate that she could safely parent her children. Despite the intensive reunification services, it quickly became apparent that respondent could not properly care for the children. Instead, she abdicated her parental responsibilities to her friend and landlord at the time, and, when respondent did elect to parent her children, her parental skills were lacking to the point that the children were at risk of harm. Consequently, the children were again removed from respondent's care.
The evidence further established that, at the time of the termination hearing, respondent was in no better position to parent her children than when the children were initially removed. While respondent had substantially participated in the treatment plan, and made progress, she did not benefit from the services offered. Respondent's caseworker testified that respondent could readily articulate the concepts being imparted while she was participating in services. However, the caseworker explained over time, respondent was unable to retain what she had learned and then consistently apply that knowledge to her parenting of the children. Furthermore, after three years of services, the record reflects that Child Protective Services (CPS) was still investigating new allegations of abuse, neglect, and failure to supervise. Although none of the investigated incidences were substantiated, taken together, they demonstrated that there were ongoing concerns regarding respondent's ability to be a nurturing and attentive parent.
We note that respondent had the same caseworker for the entirety of the case.
Further, the quality of respondent's interaction with her children was poor. During parenting time, respondent frequently made inappropriate and degrading comments to the girls. She was routinely late for the visits and generally unfriendly, antagonistic, and short with the girls. In September 2017, the court ordered respondent to "be nice" to her own children. After this admonishment, respondent's engagement with the children noticeably improved; however, at the termination hearing in March 2018, it was evident that respondent was—consistent with her parenting pattern—reverting to being short with the children. The caseworker testified that she viewed respondent's behavior as the likely beginning of a downward slide in parenting skills.
With regard to the children's needs, there is testimony that in 2017, respondent was asked to participate in the children's therapy so that she could better understand their needs. Respondent struggled with trying to work with IH on the trauma associated with the sexual abuse. At one point, respondent stated that "she did not want to go back to this and do it all over again." This evidence suggested respondent lacked empathy and was unable to respond to her children's emotional needs. At the time of the termination, respondent continued to be in a relationship with a man who the children did not like. The children were disappointed that this man was always present during their visits with respondent. Further, this man would frequently ask IH, "who's your daddy?" This comment made IH extremely uncomfortable in light of her history of being sexually abused by a stepfather. Although IH raised these concerns with respondent, respondent did nothing, which evidences that respondent was unwilling to put her children's emotional needs ahead of her own. Moreover, IH's therapist testified that the children would be at risk of emotional harm if returned to respondent's care.
There was also testimony established that respondent suspected that her ex-husband had been sexually abusing IH yet she failed to protect her from the abuse. During the 2015 criminal trial, respondent testified that she believed it was possible that her ex-husband had been sexually abusing IH. For example, she testified that she was checking IH's undergarments and bedding daily for signs of bodily fluids. Nonetheless, she continued to leave IH in the stepfather's care. Respondent asserts that allegations related to the 2015 sexual abuse were resolved and irrelevant to the current permanent custody petition because petitioner, in July 2015, actually withdrew the request to terminate respondent's parental rights. However, child protective proceedings are treated as a single continuous proceeding; consequently, evidence admitted at one hearing may be considered at all subsequent hearings. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
The foregoing evidence was sufficient for the court to conclude that the statutory grounds for termination of parental rights were established by clear and convincing evidence. Nonetheless, respondent argues that the court's termination of parental rights was inconsistent with its findings, over the years, from reporting period to reporting period, that respondent was participating in services and making progress. We disagree. While it is true that the court routinely found that respondent was participating in services and making progress, other than its brief experiment in March 2016, it also consistently found that the children could not be safely returned to respondent's care. Thus, the record does not evidence any inconsistency, but rather it demonstrates that the court consistently found respondent's progress was insufficient to warrant reunification.
Next, respondent asserts that petitioner failed to provide adequate services to address her mental health issues. As a related concern, respondent argues that the trial court erred when it relied, in part, on two psychological evaluations from 2015, which she contends were stale and should not have been used to justify termination. Yet, the record reflects that respondent was given over 3½ years to remove the barriers to reunification. The caseworker testified that during this time respondent had been provided the necessary services to overcome her mental health issues, but respondent failed to fully participate in and benefit from the services offered. Although the DHHS "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 242, 248; 824 NW2d 569 (2012). Further, "[n]ot only must respondent cooperate and participate in the services, she must benefit from them." In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014).
Here, in addition to two psychological evaluations in 2015, respondent participated in therapy through Parkside Counseling. However, respondent eventually stopped participating and failed to return telephone calls, so her case was closed out in 2016. In July 2016, respondent participated in CMH's program: Parenting Through Change. After the goal changed to guardianship in December 2016, the caseworker encouraged respondent to continue with this program, reasoning that, with a guardianship, respondent would be permitted unsupervised parenting time and could benefit from skills learned in the reunification program. However, notwithstanding this recommendation, respondent informed the program that she was no longer working toward reunification, and the services were terminated. In July 2015, respondent was diagnosed with bipolar disorder and personality disorder for which she was prescribed psychotropic medications. At some point, there were insurance issues so respondent stopped attending psychiatric appointments and medication reviews. However, when those insurance issues were resolved, against petitioner's recommendations, respondent refused to resume treatment. Thus, there is evidence that respondent was provided services, but declined to continue with and benefit from them. A parent's failure to comply with the court-ordered treatment plan is indicative of neglect and constitutes evidence that return of the child to the parent may cause a substantial risk of harm to the child's life, physical health, or mental well-being. In re Trejo, 462 Mich at 346 n 3.
We also note that at the termination hearing, respondent asserted that she had her substance abuse and mental health issues under control. According to respondent, for the most part, she did not experience any inappropriate mood swings. She also did not take any medication and she did not feel like she needed to be evaluated for any medication. Respondent felt like she was "at a strong enough place in my relationship with myself, just loving myself, and being around positive people." Considering that respondent refused to participate fully in the services, there is no indication that she would have fared better had additional or alterative services been offered. --------
In sum, there was clear and convincing evidence that respondent would not be able to adequately parent her children within a foreseeable and reasonable time. For more than 3½ years, respondent had not shown that she could maintain forward progress toward reunification. Accordingly, the trial court did not clearly err by finding grounds to termination respondent's parental rights under MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j).
III. BEST INTERESTS
A. STANDARD OF REVIEW
Next, respondent challenges the trial court's finding that termination of her parental rights was in the children's best interests. Whether termination of parental rights is in the child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews for clear error a trial court's finding that termination of parental rights is in the child's best interests. In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009).
B. ANALYSIS
"If the court finds that there are grounds for termination of parental rights and 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." MCL 712A.19b(5). The court may consider several factors when deciding if termination of parental rights is in a child's best interests, including "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, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted).
At the time of termination, IH was 10 years old and DC was 7. They had been in care for 3½ years. During that time, respondent substantially participated in the services, but there was little evidence that she had benefited. Additionally, although there is evidence that a bond exists between respondent and her children, the strength of that bond is questionable. IH continued to be hurt by respondent's lack of emotional support surrounding the sexual abuse, and she was resistant to visitation with respondent. DC reported that she loved respondent but was equivocal about the prospect of being returned to respondent's care. Moreover, DC's bond with her mother and the desire to return to her care was linked to her desire to be reunited with her father as well. She did not understand that her father, as the perpetrator of the abuse against her sister, would not be reunited with her. Consequently, the nature of respondent's bond with DC was complicated. Additionally, at the time of the termination hearing, the children were in the care of their maternal grandmother. When balancing the best-interest factors, a court may consider the advantages of a foster home over the parent's home and the possibility of adoption. Id. at 42. Moreover, although placement with a relative weighs against termination, and the fact that a child is living with relatives must be considered, a trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child's best interests. Id at 43. In this case, the trial court acknowledged the relative placement and fully explored the implications related thereto, but still found that termination of respondent's parental rights was in the children's best interests.
Both IH and DC were affected by respondent's husband's sexual abuse of IH. While IH experienced the sexual assault, DC was traumatized by the aftermath. IH continues to relive the assault. The children's therapist explained that both girls were currently "in a good place." However, she noted that as they get older and mature, they will look back on the events with "new eyes" and they will revisit the past. While this does not mean that they will be re-traumatized necessarily, it does mean that they will need to be in a supportive environment. In the therapist's opinion, the children's maternal grandmother was more equipped than respondent to meet the children's future needs. Considering this, the trial court did not clearly err when it determined that termination of respondent's parental rights was in the children's best interests. It is apparent that the children were placed in a stable home where they were progressing and that this progress could continue as the maternal grandmother had indicated a desire to adopt her grandchildren. Overall, after 3½ years, IH and DC were entitled to stability, consistency, and finality. Given the record, the trial court did not clearly err by finding that termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Michael J. Kelly
/s/ David H. Sawyer
/s/ Jane E. Markey