Opinion
356316
09-02-2021
In re HAWKINS, Minors.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2019-000515-NA
Before: Letica, P.J., and Servitto and M. J. Kelly, JJ.Per Curiam.
Respondent appeals as of right the order terminating her parental rights to her children, AH (born September 24, 2018) and LH (born January 4, 2016) ("the children"), under the provisions of MCL 712A.19b(3)(c)(/), MCL 712A.19b(3)(c)(w), MCL 712A.19b(3)(g), and MCL 712A.19b(3)(j). We affirm.
On March 19, 2019, petitioner, the Department of Health and Human Services ("DHHS"), filed a petition requesting temporary jurisdiction over AH and LH. Specifically, the petition included the following allegations: (1) respondent failed to seek financial or other reasonable means to provide adequate food, clothing, shelter, or medical care for LH; (2) respondent tested positive for cocaine when AH was born, and AH tested positive for cocaine when she was born; (3) respondent refused and missed several drug screens and tested positive for cocaine on other drug screens; (4) respondent's substance abuse created a risk of harm for the children based on unstable housing, sleeping with the children in her bed while under the influence, and threatened harm based on the children's ages; (5) respondent did not seek adequate prenatal care while pregnant with AH; (6) respondent had prior contacts with Child Protective Services ("CPS"); (7) LH tested positive for marijuana when she was born; (8) respondent had failed to participate and/or benefit from prior services, creating a risk of harm for the children; and (9) respondent had a criminal history, including an arrest for assault and a conviction for retail fraud. A parent agency treatment plan was formulated requiring respondent to, among other things, attend parenting classes and individual counseling, participate in drug screens, engage in visitation, and obtain suitable housing and income.
After three permanency planning hearings, the referee found that respondent had not made any progress on the treatment plan, and thus, ordered that petitioner file a supplemental petition for permanent custody. On August 28, 2020, petitioner filed a supplemental petition seeking termination of respondent's parental rights to AH and LH under MCL 712A.19b(3)(a)(ii), MCL 712A.19b(3)(c)(i), MCL 712A.19b(3)(c)(ii), MCL 712A.19b(3)(g), MCL 712A.19b(3)(j), and MCL 712A.19b(3)(k)(i).
A bench trial on the supplemental petition was held before the trial court on November 13, 2020, resumed on December 10, 2020, and concluded on January 7, 2021. After closing arguments were presented, the referee found statutory grounds to support termination of respondent's parental rights to AH and LH pursuant to MCL 712A.19b(3)(c)(i), (c)(ii ), (g), and (j). The referee also found that termination was in the children's best interests. On January 27, 2021, the trial court entered an order terminating respondent's parental rights to AH and LH on those statutory bases. In its order, the trial court stated:
The mother has failed to address her substance abuse issues in the 17 months since disposition. She has also failed to maintain regular contact with her children through visits and she has failed to offer a home to be assessed after 17 months. She has still not completed parenting classes. The children are placed with their legal fathers[s]. The court considers this as a possible ground to maintain parental rights. However, given the mother's lack of any level of consistency in addressing her issues in the 17 months since this court has issued an order for disposition, the court finds that termination of the mother's rights is in the best interests of the children.
On appeal, respondent argues that the trial court erred in finding that the stated statutory grounds for termination existed.
This Court reviews for clear error the trial court's decision that a ground for termination has been proven by clear and convincing evidence. In re Olive/Metts Minors, 297 Mich.App. 35, 40; 823 N.W.2d 144 (2012). "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 Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011). Only one statutory ground is required to terminate a respondent's parental rights. In re Frey, 297 Mich.App. 242, 244; 824 N.W.2d 569 (2012).
Termination of parental rights is proper under MCL 712A.19b(3)(c)(i) if, after 182 days from the issuance of an initial dispositional order, "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." Here, the conditions that led to adjudication included substance abuse and a failure to provide proper financial support and housing for the children. The evidence presented at trial, 17 months after the issuance of the initial dispositional order, established that respondent continued to struggle with substance abuse and submitting to random drug tests, unemployment, and inappropriate housing.
DHHS foster care worker, Tierra Johnson, testified at the termination hearing that respondent had missed over 90 drug screens in 2019 and 2020. Johnson explained to respondent that missed drug screens were considered positive screens. Respondent also tested positive for cocaine and marijuana a few months before the termination hearing and Johnson had referred her for individual counseling with a substance abuse component many times, but respondent still failed to engage in therapy. Respondent acknowledged that she was required to address her substance abuse, and admitted she was not participating in counseling at the time of trial. Respondent also admitted that she had missed 93 drug screens, and that the children came into care because of her substance abuse.
With respect to employment, Johnson was not able to verify respondent's income. Respondent recently told Johnson she may be obtaining a job, but respondent admitted at trial that she was still unemployed.
As to housing, respondent testified that she was moving. Respondent further testified that the place to which she was moving was appropriate, and that she shared the new address with the prior caseworker. Johnson testified, however, that respondent's home had only one bedroom and that she asked respondent multiple times to visit the home, but respondent would either not respond or give some excuse why Johnson could not come. Johnson was thus not able to properly assess respondent's new home.
The record shows that, although respondent had been given a reasonable opportunity to rectify the conditions that led to adjudication, the conditions were not rectified, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering that AH and LH had been court wards for almost two years. Respondent, in fact, admitted that she had been given a reasonable amount of time to complete the treatment plan, but it was still not completed. Therefore, the trial court did not clearly err when it found clear and convincing evidence that 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.
Termination of parental rights is proper under MCL 712A.19b(3)(g) when a parent "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 comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." In re JK, 468 Mich. 202, 214; 661 N.W.2d 216 (2003). "By the same token, the parent's compliance with the parent-agency agreement is evidence of [his] ability to provide proper care and custody." Id.
AH and LH were adjudicated temporary court wards based on respondent's inability to care for them due to substance abuse, criminal history, unemployment, and lack of housing. At the termination hearing, documentation confirmed that respondent had missed the vast majority of required drug screens, had tested positive for illegal substances during the course of the proceedings, and failed to attend counseling or complete psychiatric evaluations for which she was referred. Moreover, respondent did not regularly or meaningfully attend parenting classes. Johnson testified that respondent only started parenting classes in October 2020 after five referrals. Respondent admitted that she was re-referred to parenting classes several times and testified that she had completed four classes in 2020. Respondent also admitted that she had been referred to a psychiatric evaluation, but she did not complete it, and she further admitted that she did not participate in individual therapy despite five referrals. She also did not obtain employment. Maintaining employment to provide for the minor child is an essential part of financially providing for the minor child.
In addition, respondent failed to maintain regular contact with her caseworker and, most importantly, respondent missed most visits with the children without proper justification. Johnson testified that respondent missed four supervised visits with the children in January 2020 and four visits in February 2020. Cody M. Ayala, the legal father of AH, testified that AH had been living with him since she was four months old and that respondent had not been consistent with visits. Respondent visited AH once in June 2020 and once in July 2020. Respondent also admitted at trial that she did not visit with the children at all in October or November 2020.
In sum, although respondent participated in some aspects of the treatment plan-such as completing the psychological examination and begin taking parenting classes-she did not fully complete the services set forth in the plan and barely addressed, if at all, the issues that led to the removal of AH and LH. The establishment of a normal home life for AH and LH was hardly assured under those circumstances. While respondent's ability to comply with her treatment plan may have been limited because of logistical problems, such as transportation and grappling with the effects of the COVID-19 pandemic, she still needed to comply with the trial court's order of disposition, participate in and benefit from the treatment plan, and demonstrate parental fitness. Given that the children would have been court wards for a big portion of their relatively short lives, and considering respondent's criminal history, substance abuse, and the uncertainty about her ability to properly care for the minor children, the trial court did not clearly err by finding that respondent would be unable to provide AH and LH with proper care or custody under MCL 712A.19b(3)(g).
For termination to be proper under MCL 712A.19b(3)(j), petitioner must establish that "[t]here 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." "[A] parent's failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." In re White, 303 Mich.App. 701, 711; 846 N.W.2d 61 (2014). Under MCL 712A.19b(3)(j), harm can include either physical or emotional harm. In re Hudson, 294 Mich.App. at 268.
The record indicates that AH tested positive for cocaine when she was born, and LH tested positive for marijuana when she was born. Respondent does not dispute this, but instead argues that she was not using drugs at the time of trial. However, respondent screened positive for cocaine and marijuana mere months before the termination hearing. Additionally, respondent did not comply with psychological or psychiatric evaluations, did not submit documentation to verify her employment, did not obtain proper housing, and did not visit the children on a regular basis. Moreover, the fact remains that respondent's conduct, by using drugs while pregnant with AH and LH, put the children at risk of harm. It was thus not clearly erroneous for the trial court to determine that AH and LH would be at risk of harm if returned to respondent.
The trial court's findings under MCL 712A.19b(3)(c)(ii) may have been erroneous, given that no new conditions had become known to the trial court since the initial adjudication that would have independently supported assertion of jurisdiction over AH and LH. However, because termination was proper under MCL 712A.19b(3)(c)(i), (g), and (j), and petitioner need establish only one ground for termination, In re Trejo, 462 Mich. 341, 350; 612 N.W.2d 407 (2000), it is unnecessary to determine whether the trial court erred in relying on MCL 712A.19b(3)(c)(ii) as an additional statutory basis for termination. Any error would be harmless. In re Powers, 244 Mich.App. 111, 118; 624 N.W.2d 472 (2000).
Respondent next argues that termination of respondent's parental rights was not warranted because the children were placed with their respective fathers. Respondent is correct that a child's placement with relatives weighs against termination. In re Olive/Metts Minors, 297 Mich.App. at 43. Accordingly, if a child is placed with a relative during termination proceedings, the trial court is required to explicitly consider that factor in determining whether termination is in the best interests of the child. Id. "A trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal." Id.
The trial court found by a preponderance of evidence on the whole record that termination was in the children's best interests. In rendering its decision, the trial court did consider the children's relative placements with their respective fathers in determining whether termination was in the best interests of AH and LH, and it made specific findings on that issue. However, the trial court found that the children's relative placements with their fathers did not outweigh the factors that it considered in determining that termination was in the children's best interests. Specifically, the record indicates that respondent is unreliable because, even after 17 months since the adjudication, she still has not made much progress in the treatment plan. Respondent refused to participate in services, missed numerous visits with the children, did not obtain suitable housing, did not submit documentation of a legal source of income, and did not submit to numerous drug screens. Respondent's failure to comply with her treatment plan meant that she did not address the substance abuse, housing, and mental health issues that caused the children's removal in the first place. Moreover, the evidence did not show that a bond between respondent and the children was a strong one. The relative placement thus did not outweigh the other factors that deemed termination in the best interests of AH and LH.
Respondent next argues that the trial court clearly erred when it found that termination was in the children's best interests. We disagree.
This Court reviews the trial court's ruling that termination is in the child's best interests for clear error. In re Hudson, 294 Mich.App. at 268. "A finding is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re Moss, 301 Mich.App. 76, 80; 836 N.W.2d 182 (2013).
"[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. at 90 (citation and quotation marks omitted). The focus of the best-interest determination is on the child, not the parent. In re Schadler, 315 Mich.App. 406, 411; 890 N.W.2d 676 (2016). The trial court should "consider such factors as the child's bond to the parent[;] the parent's parenting ability[;] [and] the child's need for permanency, stability, and finality[.] Id. (quotation marks and citation 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.
At the time of trial, AH and LH had been removed from respondent's care for 17 months, and needed permanency, stability, and finality. It was apparent at the time of the termination trial that respondent had done very little to provide support or a stable home for AH and LH, or even regularly communicate with them. Respondent did not verify that she was able to support AH and LH financially, did not visit the children regularly, did not secure appropriate housing, and the children were in stable placement with their respective fathers. Under these circumstances, the trial court did not clearly err in finding that termination was in the children's best interests.
Affirmed.