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In re Holloway

STATE OF MICHIGAN COURT OF APPEALS
Apr 30, 2020
No. 351160 (Mich. Ct. App. Apr. 30, 2020)

Opinion

No. 351160

04-30-2020

In re HOLLOWAY, Minors.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Montcalm Circuit Court Family Division
LC No. 17-0808NA Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM.

Respondent appeals by right the trial court's order terminating her parental rights to her three minor children. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Respondent is the mother of three minor children: KJH, KNH, and KRH. The children's father is deceased. On April 30, 2018, a probation officer with the juvenile court filed a petition with the trial court seeking the removal of the children from respondent's home. The petition noted that the two older children, KJH and KNH, were already under the court's jurisdiction, based upon respondent having been charged with educational neglect approximately two months earlier. Further, KJH and KNH had a history of poor school attendance, had 48 and 35 absences, respectively, for the 2018 school year, and had been tardy numerous times. Respondent and her children had reported that some of the absences were related to respondent's appointments at a methadone clinic in Grand Rapids, where she had been receiving methadone treatments for a year to combat an opiate addiction. The petition further stated that respondent had reported that she was addicted to opiates and had last relapsed four months before; she also had tested positive for cocaine on April 4, 2018 and had missed a scheduled drug screen on April 9, 2018. The petition alleged that KJH had been prescribed 60 Ritalin pills on April 23, 2018, and that 40 of the pills were missing just a week later; although respondent claimed that the pills were at her home, respondent did not show the Children's Protective Services (CPS) investigator the pills. The petition noted that respondent had been investigated by CPS on 10 previous occasions; three investigations were substantiated during 2016 based upon: (1) KNH, who was 9 years old at the time, testing positive for cocaine, morphine, and amphetamine; (2) respondent's arrest (with KNH and KRH with her in the car) for burglary and illegal possession of prescription medication; and (3) respondent's at-the-time boyfriend, Cody Brown, physically abusing KJH. The petition also noted that respondent was then in a relationship with Theodore Blenman (Blenman), a fellow methadone user with a felony criminal record.

The children were removed from respondent's home and placed with their paternal grandmother. Respondent admitted to the allegations in the petition regarding KJH's and KNH's absences and tardiness from school, being addicted to opiates, relapsing, and testing positive for cocaine. The trial court authorized the petition and exercised its jurisdiction over the children in August 2018. Respondent was ordered to participate in a service plan that included supervised parenting time, psychological evaluation, substance abuse evaluation, supportive visitation, parenting classes, and random drug tests, and was also required to obtain appropriate housing.

Over the next year, respondent had difficulty complying with numerous aspects of her service plan, generally as a result of her missing or being late to scheduled appointments due to her methadone clinic appointments. At a review hearing held on April 9, 2019, Monika Ferris, a foster care worker, informed the court that respondent was discharged from the methadone program in Grand Rapids after she was caught using someone else's urine to fake a drug screen; respondent had found a new methadone program in Mount Pleasant. At that hearing, the court also reviewed reports from the Children's Trauma Assessment Center (CTAC) that stated that KRH had reported that Blenman had grabbed KJH by the collar, had made KRH sleep in corner, and had struck respondent in an argument over a cigarette. KRH stated in the report that he was scared and worried about his mom. The trial court noted that respondent was, at the time, dependent on Blenman for transportation, food, and most basic necessities, and that respondent had proposed moving with the children and Blenman to Blenman's mother's house. The trial court ordered that domestic violence therapy and treatment be included in respondent's service plan.

At the next review hearing on July 8, 2019, the children's lawyer-guardian ad litem (LGAL) recommended that the trial court terminate respondent's parental rights. The LGAL cited three main concerns; (1) that respondent's methadone use was impacting her ability to complete her service plan, (2) that she had lacked stable employment over the duration of the case and had not obtained suitable housing, and (3) that Blenman was still heavily involved in her life. The trial court noted that all three children had been diagnosed with post-traumatic stress disorder, and reiterated that KRH had identified Blenman as an abuser. The trial court changed the permanency planning goal for the children from reunification to termination.

The termination hearing was held September 27, 2019. Respondent testified that she had no immediate plans to discontinue her methadone use. She indicated that she had ceased having a romantic relationship with Blenman, but that she was still friends with him and they owned a vehicle together. She admitted to missing drug screens, parenting time visits, and other services, but generally attributed the cause to transportation or scheduling issues. Respondent testified that she had been arrested for retail fraud a month earlier, and that Blenman was present at the time. She denied that Blenman had ever abused her or the children. Respondent stated that she had recently begun full time employment and was making eleven dollars per hour.

Ferris testified that respondent's psychological evaluator had recommended that she "get off methadone" and consider whether her relationship with Blenman was in the best interests of her children. Respondent was seeing a therapist weekly for substance abuse and trauma issues. However, respondent had missed 18 drug screens, had tested positive for cocaine before the petition was filed, and tested positive for amphetamines in January 2019; she had also tested negative for all substances, including methadone, at least five times. Respondent had failed to complete a "parenting coach" program and had been discharged for non-attendance, but did complete a trauma-informed parenting class. Respondent was late to or missed several parenting time visits; Ferris stated that the visits were scheduled around respondent's scheduled methadone clinic visits, but that respondent was still frequently late or absent. Ferris reported that respondent had been deceptive about being employed, had at least once reported that she was still working after having been terminated from a position, and had never provided pay stubs for some of the jobs she claimed to have held.

Ferris also testified that after respondent was ordered to participate in domestic violence counseling, she attended an initial assessment with the counseling service, in which she denied any domestic violence in her relationship with Blenman. Respondent stopped attending domestic violence counseling after she was told that Blenman could not transport her to the appointments or be on the premises. Respondent never obtained adequate housing.

Concerning the children's placement with their paternal grandmother, their Court-Appointed Special Advocate (CASA) testified that they were generally doing well at their placement and had recently said that they would be "okay staying with grandma," although she acknowledged that the children had in the past expressed a desire to return to living with respondent. The CASA added that the children appeared to have become "used to" their mother missing parenting time visits.

The trial court determined that statutory grounds for termination had been proven by clear and convincing evidence, and that termination of respondent's parental rights was in the children's best interests. The court subsequently entered an order terminating respondent's parental rights. This appeal followed.

II. STATUTORY GROUNDS FOR TERMINATION

Respondent argues that the trial court erred by finding that one or more statutory grounds for termination of parental rights was proven by clear and convincing evidence. We disagree. We review for clear error a trial court's finding that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met. In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). If this Court concludes that the trial court did not clearly err by finding one statutory ground for termination proven by clear and convincing evidence, this Court need not address any additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).

The trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(iii), (g), and (j). We conclude that the trial court did not clearly err by finding that the grounds found in subsections (g) and (j) were proven by clear and convincing evidence.

MCL 712A.19b(3)(g) provides for termination of a respondent's parental rights if "[t]he 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." "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White, 303 Mich App 701; 710-711, 846 NW2d 61 (2014).

The record indicates that respondent made some progress on some aspects of her service plan, but had failed to participate in or benefit from many of the services provided so as to be able to provide her children with proper care and custody. Respondent, to her credit, was consistent in attending individual counseling to address her substance abuse and trauma issues; however, during the 18 months the children were in foster care, she did not even begin to "taper down" on her methadone dose. Further, respondent was unwilling to consider inpatient treatment to address her substance abuse issues without methadone. Respondent missed numerous drug screens, tested positive for amphetamines in one drug screen, and tested negative for methadone on several others. She was also barred from one methadone clinic after she was caught using someone else's urine, although respondent attempted to frame it as her choice to switch to a more convenient location. It is clear that at the time of termination much work remained to be done to address respondent's substance abuse issues. Additionally, respondent was often late to, or missed entirely, parenting time visits, many times prioritizing her methadone appointments over seeing her children. Although respondent claimed that transportation issues were frequently to blame, she was, as the trial court noted, able to secure her daily access to methadone at a clinic that was a significant driving distance from her home. Respondent failed to complete a parenting class with DA Blodgett - St. Johns, although she did complete a trauma-informed parenting class through the Montcalm Care Network. Respondent was dropped from a supportive visitation program after she was late or absent for multiple appointments. Moreover, more than one witness testified that respondent did not see her own actions or her methadone use as a problem, and failed to take responsibility for her children being removed from her home. Respondent herself, in her testimony, minimized or disbelieved the trauma her children had experienced as a result of her relationship with Blenman or her decision to prioritize methadone procurement over the children. The trial court did not clearly err by determining that respondent's failure to make progress on these areas of her service plan demonstrated her inability to provide her children with proper care and custody. White, 303 Mich App at 710-711.

A case manager at respondent's methadone clinic testified that methadone would remain in a person's system for at least 7 to 10 days. Respondent herself testified to receiving methadone doses daily. These two facts, especially in light of respondent's discharge from her previous methadone clinic for using someone else's urine to fake a drug screen, suggests that these negative screens may have been tampered with in a similar manner. --------

Regarding her ability to provide for her children's physical needs, the record shows that respondent never obtained suitable housing during the course of the trial court proceedings . Ferris testified that on the two occasions respondent had allowed her to view her home, she observed two bedrooms, one for respondent and one for the three children (two boys and a girl). The children's room did not have beds and was "piled almost to the ceiling with stuff." Respondent herself admitted that her current housing was not appropriate for the children, but asserted that she would move out soon. However, the record is devoid of any evidence that she attempted to find a new housing situation in the 18 months preceding the termination hearing.

Respondent's inability to provide proper care and custody for her children was not based on financial inability; indeed, respondent often held a part-time job, and testified at the termination hearing that she had obtained full-time employment. Rather, this inability resulted from her prioritizing the procurement of methadone above all else, her unwillingness or inability to participate in services as evidenced by her frequent absences and tardiness (despite having input on when these services were scheduled), and her inability to provide appropriate housing for her children. Id. The trial court did not err by concluding that there was no reasonable expectation that respondent would be able to provide proper care and custody for her children within a reasonable time. MCL 712A.19b(3)(g); VanDalen, 293 Mich App at 139.

Having found that the trial court did not err by concluding that one statutory ground was proven, we need not consider any others, HRC, 286 Mich App at 461. However, we note briefly that the trial court also did not clearly err by finding that the grounds set forth in MCL 712A.19b(3)(j) were proven by clear and convincing evidence. MCL 712A.19b(3)(j) allows for termination of parental rights 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 home of the parent." This risk of harm may be mental or emotional as well as physical. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). The trial court may consider a parent's mental health and substance abuse conditions when determining whether it is reasonably likely that the children will be harmed if returned to the parent. See In re AH, 245 Mich App 77, 87; 627 NW2d 33 (2001). "[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." White, 303 Mich App at 711.

In addition to the factors already discussed, many of which supported the conclusion that the children were at risk if returned to respondent's care, the trial court also noted that the children had been, at a minimum, deeply traumatized by Blenman. Yet respondent mother had continued to have a relationship, romantic or not, with Blenman, whom she described as an important part of her support network. Respondent testified that she saw Blenman "maybe five times a week" as of the termination trial. Yet respondent wanted the trial court to believe that she would sever the relationship completely and permanently if her children were returned to her. The trial court did not err by declining to credit respondent's testimony and concluding that the children risked, at the very least, re-traumatization from Blenman's continued presence in their lives if they were returned to respondent's home. Additionally, the trial court noted that respondent was generally unconcerned with the children's education and had allowed the older children to miss considerable amounts of school in the past. The trial court did not err by finding that the grounds under subsection (j) were proven by clear and convincing evidence. MCL 712A.19b(3)(j); VanDalen, 293 Mich App at 139.

III. BEST INTERESTS

Respondent also argues that the trial court erred by determining that termination of her parental rights was in the children's best interests. We disagree. We review for clear error a trial court's decision that termination is in the children's best interests. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). When determining the best interests of the children, we weigh all of the evidence and consider a variety of factors 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. 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 701, 713-714; 846 NW2d 61 (2014) (quotation marks and citation omitted).]

The trial court noted that respondent had prioritized both her methadone appointments and her relationship with Blenman over her children, pointing out that respondent appeared to be able to arrive on time for her methadone appointments, but not for services related to reuniting with her children. It also noted respondent's apparent disinterest in her children's education as reflected by their truancy and the fact that respondent never attended parent/teacher conferences. The court stated that respondent "didn't even make an effort" in several areas of her treatment plan. It also addressed the fact that the children were placed with a paternal relative and had been out of the home for 16 months.

These findings were not clearly erroneous. Olive/Metts, 297 Mich App at 40. The record is replete with instances in which respondent placed the services needed to reunite her with her children below obtaining methadone. Respondent managed to timely attend her methadone clinic appointments, but so regularly missed parenting time and other appointments that her children became "used to it." Although we are sympathetic to respondent's desire to avoid relapsing into the use of illegal drugs, respondent was absolutely unwilling to consider any alternatives to methadone treatment and could not even commit to beginning to "taper off." Moreover, respondent consistently minimized her children's diagnoses and denied that any of the events involving Blenman reported by KRH in his CTAC interview occurred. The record therefore supports the trial court's conclusion that respondent was simply unwilling to place the best interests of her children above many of her own interests.

Further, although respondent argues that the trial court did not consider the children individually, this Court has stated that "if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." White, 303 Mich App at 715. As the trial court noted, all three siblings resided together with a paternal relative; respondent does not point to any significant differences that the trial court failed to address, other than merely noting their different ages. Respondent also makes a cursory argument that the trial court should have considered guardianship for some or all of the children; however, the record does not reveal that this issue was ever raised before the trial court and respondent does not support her argument with any citation to authority; we therefore find it to be without merit. See Flint City Council v Michigan, 253 Mich App 378, 393 n 2; 655 NW2d 604 (2002) ("this Court will not search for authority to support a party's position, and the failure to cite authority in support of an issue results in its being deemed abandoned on appeal.").

Affirmed.

/s/ Jane E. Markey

/s/ Kathleen Jansen

/s/ Mark T. Boonstra


Summaries of

In re Holloway

STATE OF MICHIGAN COURT OF APPEALS
Apr 30, 2020
No. 351160 (Mich. Ct. App. Apr. 30, 2020)
Case details for

In re Holloway

Case Details

Full title:In re HOLLOWAY, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Apr 30, 2020

Citations

No. 351160 (Mich. Ct. App. Apr. 30, 2020)