Opinion
355851 355854
10-14-2021
In re HIDALGO/LUCAS, Minors. In re A. HIDALGO, Minor.
UNPUBLISHED
Ingham Circuit Court Family Division LC Nos. 18-001145-NA; 18-001146-NA
Before: Swartzle, P.J., and Cavanagh and Gadola, JJ.
PER CURIAM.
In Docket No. 355851, respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor children, AH and CCML, under MCL 712A.19b(3)(c)(i), (g), and (j). In Docket No. 355854, respondent-father appeals as of right the same circuit court order terminating his parental rights to AH under the same grounds. We affirm.
CCML's legal father is not a party on appeal.
I. BACKGROUND
In September 2018, the Department of Health and Human Services filed a petition requesting that the trial court exercise in-home jurisdiction on the basis that CCML was gaining weight slowly and had not seen a doctor since June 2018, respondent-mother did not have stable housing, and respondent-mother failed to provide proper care and custody. Respondent-father was incarcerated at the time the petition was filed. The referee authorized the petition and granted in-home jurisdiction with respondent-mother and CCML's legal father. Pursuant to the department's request, respondent-father was dismissed from the petition.
In January 2019, the department filed an emergency removal petition as it pertained to respondent-mother, along with a Sanders petition requesting removal as it pertained to respondent-father. Testimony established that CCML was hospitalized for six days for failure to gain weight and a double ear infection. Testimony also established that for a period of time when CCML was in the hospital, respondent-mother could not be located, and otherwise, she stayed only for short periods of time. Respondent-mother was also testing positive for marijuana at this time and drank alcohol on her 21st birthday contrary to previous court orders. CCML was removed and placed with his paternal grandparents. AH, who was in the hospital at the time for pneumonia, was later removed and also placed with CCML's paternal grandparents. The children remained in this placement throughout the rest of the case. An order of adjudication regarding respondent-father was entered in March 2019 after he admitted that he was involved in a Children's Protective Services investigation regarding domestic violence with respondent-mother and that he did not have appropriate housing for AH. In May 2019, respondent-mother was referred for a psychological evaluation.
In re Sanders, 495 Mich. 394, 413-420; 852 N.W.2d 254 (2014).
A second motion to show cause was filed on the basis that respondent-mother was testing positive for substances and consuming alcohol, but the motion was dismissed in light of the emergency removal request.
In September 2019, respondent-mother admitted that she tested positive for marijuana on three occasions and failed to test on 10 occasions; she was sentenced to a suspended term of seven days in jail, pending 30 days' compliance with orders that she test negative for substance use and have no missed tests. Respondent-mother never achieved 30 days of clean screens. Respondent-father completed a psychological evaluation in October 2019.
In January 2020, the department filed a termination petition. At the pretrial hearing in February 2020, caseworker EP testified that the department no longer wanted to pursue termination against respondent-mother on the basis that she demonstrated substantial progress during the reporting period, including obtaining her own housing. But, at a dispositional review hearing in May 2020, the department stated that it wanted to continue with termination on the basis that during respondent-mother's first home visit at the end of February or beginning of March her home smelled of smoke, which caused AH (who suffered from respiratory problems) to cough throughout the visit, and there was drug paraphernalia in the guest bedroom, which was a "designated smoking room." Because of COVID-19, the department was unable to reevaluate the appropriateness of respondent-mother's home until June 2020.
The termination hearing lasted three days. Caseworker FB, who reevaluated respondent's home, testified that there were no unusual odors and there was no drug paraphernalia, but the guest bedroom was still a designated smoking room. Respondent-mother's Foster Care Supportive Visitation coach testified that respondent-mother was discharged from this program at the end of
August 2019 for her failure to prioritize the program. EP testified that respondent-mother did not begin to start regularly visiting the children until toward the end of EP's time on the case in May 2020. FB testified that in May 2020, respondent-mother attended approximately half of her video visits with the children, but that respondent-mother did not visit the children for approximately two months after that because she was upset that the foster parents were going to cut CCML's hair.
Respondent-mother's counselor at Mid-Michigan Recovery Services testified that he was going to close services on the basis that he felt she benefited from services, but EP testified that respondent-mother still had substance abuse issues. The counselor was unsuccessful in contacting respondent-mother to continue services, so her file was closed in January 2020, but reopened in June 2020.
Respondent-father's Foster Care Supportive Visitation coach testified that respondent-father successfully completed the Foster Care Supportive Visitation program. EP testified that respondent-father attended approximately half of his visits during her time of the case. FB testified that after she took over the case, respondent-father refused to do virtual visits, so he did not start visiting AH until mid-June 2020 when in-person visits resumed. Between mid-June and the second day of the termination hearing on August 4, 2020, respondent-father attended approximately half of his visits, but attended every visit between that hearing and the August 28, 2020 termination hearing. The visits between respondent-father and AH went well. Respondent-father testified that he did not have independent housing.
The trial court then terminated respondents' parental rights as discussed earlier. These appeals followed. Additional relevant background material will be discussed in the next section.
II. ANALYSIS
A. REASONABLE EFFORTS (DOCKET NO. 355851)
First, respondent-mother argues that the department failed to make reasonable efforts on the basis that it should have made the referral for the psychological evaluation earlier in the case, held a family team meeting to make recommendations for how to rectify her housing issues, scheduled a second home visit, and referred her for domestic violence services. To preserve this issue, respondent-mother was required to "object or indicate that the services provided to [her] were somehow inadequate." In re Frey, 297 Mich.App. 242, 247; 824 N.W.2d 569 (2012). "The time for asserting the need for accommodation in services is when the court adopts a service plan . . . ." Id. (quotation marks and citation omitted; alteration in original). Respondent-mother's counsel objected to the timing of the psychological evaluation soon after the case service plan was adopted. But respondent-mother never argued that she needed domestic violence services. Furthermore, respondent-mother's counsel did not argue until the last day of the termination hearing that a family team meeting should have been conducted. Thus, this issue is partially preserved for appellate review.
"We review the trial court's findings regarding reasonable efforts for clear error." In re Smith, 324 Mich.App. 28, 43; 919 N.W.2d 427 (2018). "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). To be clearly erroneous, a trial court's determination must be more than possibly or probably incorrect. Id. In reviewing the trial court's determination, this Court must give due regard to the unique "opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id., citing MCR 2.613(C).
Unpreserved issues are reviewed for plain error. In re VanDalen, 293 Mich.App. 120, 135; 809 N.W.2d 412 (2011). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. (quotation marks omitted), citing People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich.App. 1, 8-9; 761 N.W.2d 253 (2008). The appellant bears the burden of persuasion with respect to prejudice. See Carines, 460 Mich. at 763 ("It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.") (quotation marks and citation omitted).
Generally, when a child is removed from the parent's custody, the petitioner must make reasonable efforts to rectify the conditions that caused the child to be removed by adopting a case-service plan outlining the steps petitioner and the respondent will take to rectify the conditions and unify the family. In re Hicks/Brown, 500 Mich. 79, 85; 893 N.W.2d 637 (2017). Recently, in an order remanding to the circuit court, the Michigan Supreme Court, citing In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010), stated in In re Simonetta, ___ Mich. ___ (2021) (Docket No. 162710), that “[r]easonable efforts to reunify the child and family must be made in all cases except those involving the circumstances delineated in MCL 712A.19a(2).” Similarly, this Court recently dismissed, as dicta, the often-quoted statement that the department “is not required to provide reunification services when termination of parental rights is the agency's goal.” In re S J Sanborn, _ __ Mich.App. ___, ___ n 2; ___ N.W.2d ___ (2021) (Docket Nos 354915 & 354916); slip op at 2 n 2. That said, “[w]hile the DHS 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. A respondent must also demonstrate that he or she has benefitted from services proffered. Id.
Orders from our Supreme Court are binding if they are a final disposition of an application containing a concise statement of the applicable facts and the reason for the decision. See DeFrain v State Farm Mut Auto Ins Co, 491 Mich. 359, 369; 817 N.W.2d 504 (2012).
First, respondent-mother argues that the department failed to make reasonable efforts because it should have made the referral for her psychological evaluation earlier in the case. EP referred respondent-mother for a psychological evaluation after a hearing in April 2019 at which EP testified that respondent-mother was "feeling very stressed and emotionally overwhelmed" because she had phone issues and her vehicle was totaled in May 2019. Respondent-mother missed her appointment for the psychological evaluation in October 2019 and the evaluation was completed in December 2019. On the basis of the evaluation, it was recommended that respondent-mother, in relevant part, engage in "[f]airly intensive therapy" to help her manage her anxiety and depression. Although respondent-mother argues that the department should have made the referral for her psychological evaluation earlier in the case, nothing established that respondent-mother was having issues with her anxiety or depression before the April 2019 hearing. Furthermore, respondent-mother was already receiving counseling through Mid-Michigan Recovery Services. In fact, respondent-mother testified that she was not just in counseling for her drug issues; rather, she was also learning coping mechanisms, which was on her "goal sheet." Because the department timely referred respondent-mother for a psychological evaluation and she was already receiving counseling through Mid-Michigan Recovery Services, respondent-mother cannot establish that the department failed to make reasonable efforts on the basis that it should have made the referral for the psychological evaluation earlier in the case.
Next, although respondent-mother argues that the department should have held a family team meeting after the first failed home visit to provide recommendations for how she could rectify her housing conditions, respondent-mother testified that EP told her not to smoke in the home. Further, because of COVID-19, EP was unable to complete a second home visit during her time on the case. But even if she had completed a second home visit, EP's major concern would still have been present because respondent-mother still had a smoking room when her house was eventually reevaluated. Thus, respondent-mother's argument that EP should have given her recommendations to improve her housing situation is unavailing. Finally, respondent-mother has failed to show that she would have fared better had the department referred her for domestic violence services. We conclude that the trial court did not clearly err by finding that the department provided reasonable efforts to reunify the children with respondent-mother.
B. STATUTORY GROUNDS (DOCKET NOS. 355851; 355854)
Next, respondents argue that the trial court erred by terminating their parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). 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, 709-710; 846 N.W.2d 61 (2014). To be clearly erroneous, a trial court's determination must be more than possibly or probably incorrect. In re Ellis, 294 Mich.App. at 33. "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." Id. Finally, this Court must consider "the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id.
"Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds." In re Ellis, 294 Mich.App. at 32. MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a respondent's parental rights if "182 or more days have elapsed since the issuance of an initial dispositional order" and "[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." "This statutory ground exists when the conditions that brought the [child] into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services . . . ." In re White, 303 Mich.App. at 710 (quotation marks and citation omitted; alteration in original). Stated another way, termination is proper when the "totality of the evidence" demonstrates that the parent did not make "any meaningful change in the conditions" that led to adjudication. In re Williams, 286 Mich.App. 253, 272; 779 N.W.2d 286 (2009).
1. DOCKET NO. 355851
The trial court did not err by terminating respondent-mother's parental rights under MCL 712A.19b(3)(c)(i).
The initial dispositional order for respondent-mother was entered on November 5, 2018, and her parental rights were terminated on November 16, 2020. Thus, more than 182 days had elapsed since the initial dispositional order was entered.
Next, the conditions leading to adjudication were respondent-mother's issues with attending to the children's medical needs, along with her parenting, housing, and substance abuse issues. Despite AH's respiratory issues, respondent-mother did not understand why she was supposed to stop smoking in her home, and she claimed that her home was smoke-free when the then-current caseworker reevaluated her home. Consequently, respondent-mother still had issues with understanding the children's medical needs, specifically AH's. Respondent-mother also continued to have housing issues because she still had the designated smoking room; therefore, as the trial court found, respondent-mother's housing remained problematic, especially for AH. Respondent-mother's parenting issues continued to exist because she failed to exercise consistent parenting time throughout the case. Further, in June 2020, respondent-mother tested positive for marijuana, and in August 2020 she tested positive for opiates and morphine. She was also not regularly attending her individual and group sessions at Mid-Michigan Recovery Services. For these reasons, the conditions leading to adjudication continued to exist at the time of termination.
Finally, there was no reasonable likelihood that respondent-mother would rectify the conditions leading to adjudication within a reasonable time considering the children's ages. AH was four years old and CCML was almost three years old at the time of termination. Although the barriers to reunification and the recommendations to overcome these barriers were outlined in respondent-mother's October 2018 initial case service plan, she failed to comply with and benefit from the case service plan during the two years the case was pending. Thus, as the trial court found, respondent-mother made no meaningful change in the conditions that led to adjudication. See In re Williams, 286 Mich.App. at 272. Accordingly, the trial court did not err by terminating respondent-mother's parental rights under MCL 712A.19b(3)(c)(i).
Because only one statutory ground is required to terminate a respondent's parental rights, we need not address respondent-mother's argument that the trial court erred by terminating her parental rights under MCL 712A.19b(3)(g) and (j). See In re Frey, 297 Mich.App. at 244.
2. DOCKET NO. 355854
The trial court also did not err by terminating respondent-father's parental rights under MCL 712A.19b(3)(c)(i).
The initial disposition order for respondent-father was entered on April 22, 2019, and his parental rights were terminated on November 16, 2020. Thus, more than 182 days had elapsed since the initial disposition order was entered.
The primary conditions leading to adjudication were domestic violence and housing, which continued to exist at the time of termination. Before the last day of the termination hearing, respondents had a verbal altercation in the courthouse regarding respondent-father wanting to get his belongings from respondent-mother. This altercation was sufficiently disruptive that a deputy had to break it up and warn respondent-father. This altercation demonstrated that respondent-father still had domestic violence issues. Further, respondent-father testified that he did not have his own housing. Although respondent-father previously completed domestic violence counseling, it does not appear that he benefited from this service. Further, respondent-father never obtained his own housing during the pendency of the case. Thus, there is no reasonable likelihood that respondent-father would rectify his domestic violence and housing issues within a reasonable time considering AH's age. Accordingly, the trial court did not err by terminating respondent-father's parental rights under MCL 712A.19b(3)(c)(i).
Because only one statutory ground is required to terminate a respondent's parental rights, we need not address respondent-father's argument that the trial court erred by terminating his parental rights under MCL 712A.19b(3)(g) and (j). See In re Frey, 297 Mich.App. at 244.
C. BEST INTERESTS (DOCKET NOS. 355851; 355854)
Finally, respondents argue that the trial court clearly erred by finding that termination was in the children's best interests. "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, 40-41; 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 are reviewed for clear error. In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016).
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich.App. at 713. In considering the child's best interests, the trial court's focus must be on the child and not 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, 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. When the trial court makes its best interests-determination, it may rely upon evidence in the entire record, including the evidence establishing the statutory grounds for termination. In re Trejo, 462 Mich. 341, 353-354; 612 N.W.2d 407 (2000), superseded by statute on other grounds as recognized in In re Moss, 301 Mich.App. at 83. In cases concerned with multiple children, the trial court must determine each child's interests individually. In re Olive/Metts, 297 Mich.App. at 43-44. But a trial court is not required to make individual and redundant best-interest findings for each child when the best interests of the children do not significantly differ. In re White, 303 Mich.App. at 715-716. Finally, "[a] child's placement with relatives is a factor that the trial court is required to consider" when making its best-interests determination, In re Gonzales/Martinez, 310 Mich.App. 426, 434; 871 N.W.2d 868 (2015), and "a child's placement with relatives weighs against termination," In re Mason, 486 Mich. at 164.
1.DOCKET NO. 355851
The trial court did not clearly err by finding that terminating respondent-mother's parental rights was in the children's best interests.
First, although respondent-mother argues that she had a bond with her children, this is precisely what the trial court found. Specifically, because respondent-mother testified that her bond with CCML was not as strong as her bond with AH, the trial court appropriately found that respondent-mother's bond with CCML was weaker.
Next, with respect to the children's need for permanency, stability, and finality, respondent-mother argues that but-for the COVID-19 pandemic, her housing would have been deemed appropriate by March 2020 and, therefore, the children would have likely been returned to her care by the time the termination hearing was held. Given that the trial court found that respondent-mother's housing was unsafe, it is unlikely that the trial court would have returned the children to her care. Regardless, for the reasons previously discussed, housing was not the only barrier to reunification that existed at the time of termination. Furthermore, as the trial court stated, the likelihood of adoption for AH was high, and CCML's father was willing to consent to a guardianship, which could open the potential for adoption, if necessary. For these reasons, the children's need for permanency, stability, and finality supported termination.
Next, although respondent-mother argues that CCML's placement with relatives weighed against termination, the trial court explicitly considered relative placement but found that respondent-mother's lack of participation in services did not outweigh the benefits of termination. Additionally, and as discussed earlier, respondent-mother failed to comply with and benefit from the case service plan. Thus, the trial court did not err by finding that terminating respondent-mother's parental rights was in the children's best interests.
2. DOCKET NO. 355854
Finally, the trial court did not clearly err by finding that terminating respondent-father's parental rights was in AH's best interests.
Respondent-father first argues that he had a bond with AH, but this is precisely what the trial court found. Further, although respondent-father argues that "parenting was not really at issue" because he understood AH's needs and was affectionate with her during visits, the trial court focused on respondent-father's behavior toward workers, what he said to AH about respondent-mother, his lack of participation in services, and his lack of housing. EP testified that respondent-father made inappropriate and derogatory comments in front of AH, including using profanity with agency workers. EP also testified that there were times in which respondent-father, while speaking with respondent-mother on the phone, told AH that respondent-mother was not at the visit because she did not want to see AH. Further, although the doctor who conducted respondent-father's psychological evaluation recommended that respondent-father engage in counseling to help him set short- and long-term goals to help him achieve stability in the areas of housing and employment, respondent-father never participated in counseling. Based on the record evidence, the trial court did not err by finding that terminating respondent-father's parental rights was in AH's best interests.
Respondents had separate visits, but they were back-to-back.
III. CONCLUSION
We affirm the trial court's order terminating respondents' parental rights for the reasons stated in this opinion.