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In re Hawley

STATE OF MICHIGAN COURT OF APPEALS
Nov 19, 2019
No. 348368 (Mich. Ct. App. Nov. 19, 2019)

Opinion

No. 348368

11-19-2019

In re C. T. HAWLEY, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 16-522536-NA Before: M. J. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ. PER CURIAM.

Respondent appeals as of right the trial court's order terminating her parental rights to her minor child, CTH, born October 5, 2015. Respondent's rights were terminated pursuant to MCL 712A.19b(3)(a)(ii) (desertion of a child for 91 or more days), (c)(i) (conditions leading to adjudication continue to exist after 182 days and no reasonable likelihood that they will be rectified), (g) (failure to provide proper care and custody while financially able to do so), and (j) (reasonable likelihood of harm). Respondent contends on appeal that the trial court erred in determining that statutory grounds for termination existed, and erred in determining that termination was in CTH's best interests. We affirm.

I. STANDARDS OF REVIEW

"The clear error standard controls our review of both the court's decision that a ground for termination has been proven by clear and convincing evidence and . . . the court's decision regarding [a] child's best interest." In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016) (quotation marks and citations omitted). See also MCR 3.977(K). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). " 'A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.' " In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016), quoting In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). "In 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.' " Schadler, 315 Mich App at 408-409, quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).

II. STATUTORY GROUNDS FOR TERMINATION

Respondent first contends that the trial court clearly erred when it determined that there was clear and convincing evidence of at least one statutory ground for termination. We disagree.

Petitioner bears the burden to establish by clear and convincing evidence at least one ground for terminating respondent's parental rights. In re Gonzales/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015). "To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013), citing In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000), superseded by statute on other grounds as stated in Moss, 301 Mich App 76. In this case, the trial court found statutory grounds had been established pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j). The relevant statutory provisions provide:

(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:

(a) The child has been deserted under either of the following circumstances:


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(ii) The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.


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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, 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.


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(j) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights. [MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j).]

First, we note that respondent fails to address MCL 712A.19b(3)(a)(ii) on appeal. This may stem from the fact that petitioner did not specifically contend that subsection (a)(ii) was satisfied either in its supplemental petition to terminate respondent's parental rights or at the subsequent termination hearing. Notwithstanding, it is abundantly clear that the trial court determined that this statutory ground was satisfied, and upon review of the record, we cannot conclude that finding was clearly erroneous.

MCL 712A.19b(3)(a)(ii) provides a statutory basis to terminate a parent's parental rights where that parent "has deserted the child for 91 or more days and has not sought custody of the child during that period." Although this Court has yet to address the particular subsection in a published opinion, this Court has before applied MCL 712A.19b(3)(a)(ii) to circumstances such as this, where a court has exercised jurisdiction over a minor child and a parent fails to "visit[] the child or contact[] the agency to arrange visitation." See In re Robinson, unpublished per curiam opinion of the Michigan Court of Appeals, issued August 9, 2007 (Docket No. 276261), p 1. In this case, respondent's caseworker testified that, prior to the hearing on whether statutory grounds for termination existed, respondent failed to visit CTH and ceased communicating with the caseworker for approximately 114 days. Respondent did not dispute this at the trial level, nor has she disputed it on appeal, and accordingly, we cannot conclude based on the available record that it was clearly erroneous for the trial court to determine that respondent deserted CTH for a period of more than 91 days such that MCL 712A.19b(3)(a)(ii) provided a statutory basis for termination. Additionally, we note that the other statutory grounds were properly established as well.

MCL 712A.19b(3)(c)(i) provides a basis for termination where a parent is a respondent in a child protective proceeding, 182 or more days lapse without the parent rectifying the conditions that led to adjudication, and "there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age." Here, respondent pleaded responsible for the conditions that led to adjudication, namely: (1) that she was living in a home with CTH which contained large, unsecured amounts of marijuana and other elicit substances, and (2) respondent tested positive for those elicit substances. Respondent committed to substance abuse therapy, individual therapy, parenting classes, and the like, and while the record demonstrates that respondent at least made efforts to comply with her treatment plan, the record also demonstrates that merely a month before the hearing on whether statutory grounds existed and nearly 30 months after the initial dispositional order was entered, respondent yet again tested positive for cocaine. Testimony established that, at that point, respondent had completed only 34 of 58 drug screens in the more than two years since the case was opened, and with that in mind, we conclude that it was not clearly erroneous for the trial court to determine that, after multiple failed attempts at rehabilitation, there was not a reasonable likelihood respondent was going to rectify the issue within a reasonable time considering CTH's young age.

CTH was approximately three years old at the time respondent's rights were terminated.

It is also worth noting that, of the drug screens respondent completed, nearly all of them were positive for marijuana. Respondent was able to produce a valid medical marijuana card, and we agree with the trial court that, given the evolving state of the law with respect to marijuana consumption, respondent's mere use of marijuana may not itself have been an act sufficient to warrant termination pursuant to MCL 712A.19b(3)(c)(i). However, the abuse of marijuana or any other substance that may be legal to consume that leads to circumstances in which adjudication becomes necessary undoubtedly could trigger the statute, and the record in this case would not have precluded a finding that respondent's marijuana use went beyond what was necessary for medicinal purposes, particularly in light of the circumstances in which CTH was initially found.

CTH was found by police during a drug raid in a room containing a large number of unsecured marijuana plants, as well as quantities of loose marijuana and crack cocaine. --------

Finally, the evidence also supports the trial court's reliance on MCL 712A.19b(3)(g) and (j). MCL 712A.19b(3)(g) provides grounds for termination where "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody . . . 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." MCL 712A.19b(3)(j) provides grounds for termination where "[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 parent. At the time of the hearing on whether statutory grounds for termination existed, which was over two years after the court initially took jurisdiction over CTH, respondent had still (1) failed to establish that she had suitable housing for CTH, and (2) failed to establish that she was employed after having worked numerous jobs since CTH became a court ward. Moreover, of the approximately 109 scheduled visitations with CTH, respondent attended approximately 54. Respondent often gave no reasons for her cancellations of visitation, and on other occasions, respondent simply failed to appear. This, coupled with respondents continued abuse of elicit substances, suggests that respondent would not be able to provide proper care or custody for CTH within the foreseeable future, and more, that CTH could be harmed if returned to respondent's care. The fact that respondent's behavior had become a pattern over the previous two years further indicated that there was no reasonable expectation that respondent would be able to safely provide for the care and custody of CTH in the foreseeable future.

III. BEST-INTEREST DETERMINATION

Respondent next contends that the trial court erred in determining that termination was in the best interests of CTH. We disagree.

After finding a statutory ground for termination by clear and convincing evidence, a trial court "cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children." Gonzales/Martinez, 310 Mich App at 434, citing MCL 712A.19b(5) and Moss, 301 Mich App at 80. "In making its best-interest determination, the trial court may consider 'the whole record,' including evidence introduced by any party." Medina, 317 Mich App at 237, citing Trejo, 462 Mich at 353. " '[T]he focus at the best-interest stage has always been on the child, not the parent.' " In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015), quoting Moss, 301 Mich App at 87 (alteration in original).

"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.' " In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014), quoting In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). "Other considerations include the length of time the child was in care, the likelihood that 'the child could be returned to [the] parents' home within the foreseeable future, if at all,' and compliance with the case service plan." Payne, 311 Mich App at 64, quoting In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). "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 child[]'s well-being while in care, and the possibility of adoption." White, 303 Mich App at 714, citing In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001), In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004), and In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728 (2009).

Here, the trial court put a substantial emphasis on CTH's young age and need for permanency and stability, and contrasted that with the court having retained jurisdiction over CTH for well over two years with little to no sign of improvement from respondent. Testimony at the best-interest hearing established that respondent was not well bonded with CTH, and that CTH often became emotional in an effort to avoid visitation with respondent. See White, 303 Mich App at 713. Respondent's caseworker further testified that respondent regularly had to rely upon food in order to get CTH to engage with her. Testimony further established that respondent had not been consistently compliant with her service plan, and her history of cancelling or skipping visitation with the minor child was extensive. See id. All of that in mind, particularly in light of the length of time in which CTH was in care and the lack of evidence that respondent would be able to provide for his care and custody in the foreseeable future, we conclude that the trial court's best-interest determination was not clearly erroneous.

Affirmed.

/s/ Michael J. Kelly

/s/ Karen M. Fort Hood

/s/ Brock A. Swartzle


Summaries of

In re Hawley

STATE OF MICHIGAN COURT OF APPEALS
Nov 19, 2019
No. 348368 (Mich. Ct. App. Nov. 19, 2019)
Case details for

In re Hawley

Case Details

Full title:In re C. T. HAWLEY, Minor.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 19, 2019

Citations

No. 348368 (Mich. Ct. App. Nov. 19, 2019)