Opinion
No. 333323
02-21-2017
In re HARRELL, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 99-378420-NA Before: GLEICHER, P.J., and MURRAY and FORT HOOD, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to her two minor children, OH and NJH, pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.
While the trial court based its decision on other statutory grounds, these are the only statutory grounds that respondent challenges on appeal.
Respondent argues that the trial court erred when it found clear and convincing evidence to support termination of her parental rights pursuant to MCL 712A.19(3)(c)(i), (g), and (j). In a related argument, respondent contends that the trial court erred by not expressly identifying the statutory grounds that provided a basis for terminating her parental rights. We disagree.
This Court will "review for clear error a trial court's factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (citations omitted). The trial court's 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 Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011) (citation omitted). The trial court "must find that at least one of the statutory grounds set forth in MCL 712A.19b has been met by clear and convincing evidence." In re Fried, 266 Mich App 535, 540-541; 702 NW2d 192 (2005) (citation omitted).
As an initial matter, we note that respondent's contention that the trial court did not state the legal grounds for terminating respondent's parental rights is simply not accurate. The trial court's order incorporated the referee's report and recommendation. In the recommendation, the referee provided detailed findings of fact and conclusions of law. As relevant to this appeal, the conclusions of law stated that termination was in accordance with MCL 712A.19b(3)(c)(i), (g), and (j).
We next turn to respondent's argument that the record did not support the trial court's findings that termination was warranted pursuant to MCL 712A.19b(3)(c)(i), (g) and (j).
MCL 712A.19b provides, in pertinent part, 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:
* * *
(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.
* * *
(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.
We first address respondent's argument that the trial court erred in terminating her parental rights pursuant to MCL 712A.19b(3)(c)(i). The thrust of respondent's arguments are that since she was checked into a rehabilitation facility at the time of the termination hearing, she ought to have been given more time, specifically three months, before the trial court considered terminating her parental rights.
During the final termination hearing, the referee noted on the record that "[the] [c]ourt wants to give every opportunity to a mother and father to be able to be reunified with their children." The referee further observed that it gave respondent ample time to address her substance abuse issues and to comply with her court-ordered treatment plan. The referee also stated that "[respondent] really has not done anything in regards to her treatment plan despite multiple referrals" for substance abuse services and parenting classes. A close review of the record supports the trial court's conclusion that "[t]he 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." MCL 712A.19b(3)(c)(i). Specifically, a dispositional hearing was held on May 28, 2015, and the trial court ordered respondent to attend supervised visitation with her children, to participate in parenting classes and substance abuse counseling, and to comply with random drug screens. At the May 6, 2016 final termination hearing, the foster care specialist testified that respondent had been terminated three times from her parenting classes and substance abuse counseling on the basis of her non-attendance. Additionally, respondent mother had participated in only one out of the 42 mandatory drug screens, and she tested positive for cocaine. During the lower court proceedings, respondent also failed to make regular visits to see her children, having missed 51 scheduled weekly visits. Moreover, the foster care specialist testified that respondent had moved at least five different times during the lower court proceedings and further confirmed that respondent had not maintained suitable housing. Respondent also failed to provide proof of a legal source of income. Therefore, the trial court did not clearly err in determining that termination was appropriate under MCL 712A.19b(3)(c)(i).
For the same reasons, the trial court did not clearly err in terminating respondent's parental rights pursuant to MCL 712A.19b(3)(g) and (j). A parent's failure to comply with a court-ordered treatment plan provides evidence of the parent's inability to provide proper care and custody as contemplated by MCL 712A.19b(3)(g). In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014). Respondent failed to complete parenting classes and substance abuse counseling even though she was referred three separate times for services. Moreover, she missed 41 of her 42 drug screens and tested positive on the only drug screen that she complied with. Respondent also failed to keep in regular contact with the foster care specialist, to maintain suitable housing, or to provide a legal source of income. We acknowledge there was an indication in the record that respondent received social security disability income, however, the foster care specialist informed the trial court that what respondent was receiving was not sufficient to support herself and her children. Respondent now claims on appeal that she could have received additional financial assistance from the state of Michigan, and that she was receiving housing assistance from the rehabilitation facility where she was receiving treatment at the time of the final termination hearing. However, as noted, the trial court had given respondent ample time to comply with her treatment plan and respondent had made no progress. While respondent also asserts that she was not provided referrals for in-patient rehabilitation treatment, the record reflects that the foster care specialist did not make such a referral because respondent would not acknowledge and admit that she was struggling with serious substance abuse issues. On this record, we conclude that the trial court's findings were not clearly erroneous when it terminated respondent mother's parental rights pursuant to MCL 712A.19b(3)(g).
MCL 712A.19b(3)(g) provides the trial court with authority to terminate parental rights where "[t]he 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."
There is also an indication in the record that respondent's son, OH, received social security income.
During the final termination hearing, the foster care specialist confirmed that respondent had reached her "four-year limit for state assistance" but that she may be eligible for "some food assistance."
Finally, a parent's failure to substantially comply with a court-ordered treatment plan can support a trial court's finding 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 341, 346 n 3; 612 NW2d 407 (2000) (quotation marks and citation omitted). On appeal, respondent contends that her lack of communication with the foster care specialist was attributable to her being housed in a rehabilitation facility where she voluntarily sought help for substance abuse issues. However, the record reflects that respondent entered the rehabilitation facility in April 2016, and that she had not maintained regular contact with the foster care specialist for an extended period of time before that. Therefore, for the same reasons as outlined above, the trial court did not err in concluding that the record evidence justified termination pursuant to MCL 712A.19b(3)(j).
In re Trejo was superseded by statute on other grounds as recognized by In re Moss, 301 Mich App 76, 83.
Where respondent suggests in her brief on appeal that her liberty interest in raising her children has been violated, it is well-settled that once petitioner has successfully presented clear and convincing evidence to support termination under at least one statutory ground, "the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich at 355 (citation omitted).
Respondent also contends that the trial court erred when it found that termination of her parental rights was in the best interests of the children. We disagree.
This Court reviews for clear error a trial court's decision regarding whether termination is in the child's best interests. In re JK, 468 Mich 202, 209; 661 NW2d 216 (2003). "[W]hether termination of parental rights is in the best interest of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013) (footnote omitted).
Once a statutory ground has been proven, the trial court must find that termination is in the children's best interest before it can terminate parental rights. MCL 712A.19b(5). In considering whether termination of parental rights is in the best interests of the children, "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." In re White, 303 Mich App at 713 (footnote, citation and quotation marks omitted). Additionally, the trial court may also evaluate "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." Id. at 714 (footnote and citations omitted).
The record evidence supported the trial court's conclusion that termination of respondent's parental rights was in the best interests of the children. As noted above, respondent was unable to successfully complete her case service plan, having failed to attend her parenting classes and substance abuse counseling after multiple referrals. She also failed a drug screen and tested positive for cocaine during the pendency of the lower court proceedings. Additionally, respondent failed to visit her children on a regular basis. On appeal, respondent claims that termination was not warranted where she (1) was making headway in addressing her substance abuse issues, (2) was receiving housing assistance from the rehabilitation facility, (3) had a legal source of income and (4) had a strong bond with her children. During the final termination hearing, evidence was adduced that shortly before entering the rehabilitation facility, respondent was unable to take care of herself, and was begging for money from strangers on the street. As of the final termination hearing, respondent had not obtained suitable housing for her children, and she had still not provided the foster care specialist with proof of a legal source of income. There was also evidence in the record that respondent's children were becoming estranged from her and did not want to maintain further contact with her. Taken together, respondent's continuing substance abuse, her inability to obtain housing and provide a legal source of income, and her failure to comply with her treatment plan after an extended period confirmed that she could not parent her children. In contrast, the permanency plan for both children was adoption. Given the children's ages, and giving careful weight to the need for security and stability in their lives after these extended legal proceedings, we conclude that the trial court's decision to terminate respondent's parental rights was in the best interests of the children.
The trial court also observed that respondent had informed the foster care specialist that she had used cocaine on an unspecified date in 2015 during the lower court proceedings. The trial court also stated that it had "bent over backwards" to give respondent ample time to improve her life circumstances before terminating her parental rights and respondent simply had not done so.
According to the record, adoption by respondent's aunt was a viable option for respondent's daughter, NJH. --------
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood