Opinion
No. 335545
06-20-2017
In re HURST/WILLIAMS, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 14-518140-NA Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ. PER CURIAM.
Respondent mother appeals as of right a circuit court order terminating her parental rights to the minor children LH and SW pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). For the reasons set forth in this opinion, we affirm.
A. BACKGROUND
Petitioner filed a petition for temporary custody of the children in October 2014 alleging that the family had been substantiated for neglect in June 2010 "for Failure to Protect, Physical abuse, Drug positive infant abuse, and substance abuse" and respondent "was offered services at Professional Outreach." It alleged that, more recently, respondent, who had a criminal history, had been in jail since September 9, 2014, on charges of home invasion, breaking and entering, and larceny. Respondent apparently left the children with her mother. Somehow, the children ended up with an unrelated woman. Respondent did not have suitable housing available upon her release from jail. Following the preliminary hearing, the petition was authorized and the children were placed in foster care, pending investigation of relative placement.
The trial was adjourned several times. It was finally set for March 2015, at which time respondent entered a plea of admission to some of the allegations against her. Respondent admitted that she used to have a residence on Cooley Street in Detroit. She left that residence and stayed with her mother until she was incarcerated; she did not have independent housing for herself and the children. Respondent admitted that she had a criminal history and was presently in jail. She had been convicted of first-degree home invasion and sentenced; she had an out-date of June 11, 2015. Respondent admitted that she had previous contact with Children's Protective Services and had been substantiated for "drug positive infant and substance abuse[.]" She was offered services at Professional Outreach Counseling but did not participate. The case proceeded directly to disposition. The court ordered that respondent cooperate with petitioner and maintain regular contact with the foster-care worker, attend court hearings and obey court orders, attend parenting classes and individual counseling, obtain a substance abuse screening and follow recommendations, maintain suitable housing and a legal source of income, and visit the children.
Respondent did not attend the June 22, 2015 review hearing. Carolyn Henderson, the foster care worker, testified that respondent was released from jail on probation on June 11, 2015. A family visit was scheduled for June 17, 2015 and respondent was a no-call, no-show. Henderson had given respondent referrals for parenting classes and counseling. LH had been referred for counseling and respondent had not contacted the counseling center regarding the intake process despite two requests. Respondent was living with her mother or grandmother, and was not known to have a source of income.
Respondent appeared late to the September 17, 2015 review hearing. Sandra Asberry, the new foster-care worker, testified that the children had been placed with their maternal aunt in September. The children "love living with their aunt" and were doing "[e]xcellent" in her home. Because the aunt lived in Flint and respondent reported living in Westland, visits were scheduled at Great Lakes Crossing. Bus passes were available, but respondent had not been to the foster-care agency to collect them. Respondent had attended two visits in the last four weeks. Asberry testified that respondent was not compliant with services and had been "re-referred for services through JAC for substance abuse, parenting [classes] and individual counseling." New referrals were made on August 26, 2015. According to the updated court report, respondent had been terminated from services after not following through on referrals made in June. The court reminded respondent of "the importance of engaging in all the services that you've been referred for" and urged her to visit the children "every single opportunity that you get." Respondent stated that she started therapy. She had arranged for housing and was planning to "move out Friday to my new address." She did not have income, but did have "somebody to help me."
According to the updated court report, respondent had been referred to Forensic Fluids for drug screens in July and had failed to provide any screens. She was terminated from counseling in November due to lack of participation. She was about to be terminated from parenting classes for the same reason, but returned in late November and had attended 5 of 14 sessions. Respondent reported that she was living with her sister in Detroit and was working at a Burger King in Inkster, but she had not provided proof of income. According to respondent's attorney, respondent was "couch-surfing"—i.e., "staying with different people." Respondent was present for the review hearing and the foster-care worker reported that she had been consistently visiting the children since the last hearing. The court gave respondent "one additional reporting period" to show "substantial compliance and progress" toward reunification. Respondent provided a drug screen following the hearing "and she was clean."
According to the updated court report, respondent had been terminated from all services due to lack of participation. She had lost the job at Burger King and was living with her mother. She stated to the caseworker that she wanted a family member to have guardianship. The children had been transferred to a new home with an unrelated caregiver after their aunt suffered a series of setbacks. Respondent did not attend the review hearing. Asberry testified that respondent was "not in compliance with anything" apart from family visits, which she attended "for the most part." Respondent had provided Asberry with the names of possible guardians. She "turned the information over to our license department" for investigation and heard that "our licensing department[,] when they called the folks, some of the phone numbers that were listed and given, the phones were disconnected." The court approved concurrent plans "of reunification and adoption if there is no progress that's made towards reunification by the next court hearing."
According to the updated court report, respondent had not made any progress. She had only visited the children twice. It turned out that respondent had been in jail since April 1, 2016, for violation of probation due to a new offense. The hearing had been rescheduled for a date after respondent's release, but respondent failed to appear. Thereafter, petitioner filed a supplemental petition for termination of parental rights in June 2016. It alleged that respondent had not complied with services, was jailed again on April 1, 2016 for unlawfully driving away a vehicle, and was not due to be released until October. A termination hearing was scheduled.
At the termination hearing, Andrew Hall, the foster-care worker since March 11, 2016, testified that the children were removed in October 2014 due to neglect of education and improper supervision. They were adjudicated temporary court wards in December 2014 and a parent/agency agreement was established. The agreement called for respondent to complete parenting classes, substance abuse counseling, and individual counseling, provide weekly random drug screens, obtain housing and income, visit the children, and maintain contact with the agency.
Hall testified that respondent was referred to parenting classes, individual therapy, and substance abuse counseling on June 9, 2015, August 26, 2015, and January 11, 2016. She did not complete any of those services. Hall testified that he did not give respondent any new referrals after he took over the case because she went to jail before anything could be done. Once she was released from jail, he referred her for services again on July 19, 2016.
Hall testified that respondent was given a referral for weekly random drug screens. She was tested on August 5, September 23, and December 10, 2015, and on February 1, 2016; all but the December screen were positive for marijuana. Respondent had completed an undisclosed number of additional screens for which Hall did not have the results.
Hall testified that the agency provided respondent with "numerous resources of low income [sic] housing" such as Section 8, but respondent never obtained suitable housing. As of March 2016, respondent reported that "she was living in motels." Regarding income, Hall testified that respondent once had a job at Burger King. Respondent reported that she obtained a new job through a temporary services agency that she started on August 25, 2015. She had not yet earned a paycheck and had not provided any verifying documentation.
Hall testified that respondent was offered weekly family visits. Even when she was not incarcerated, she only attended visits "[s]poradically." Respondent had attended 19 of 45 visits. When she did visit, she demonstrated "appropriate parenting skills" and it was obvious that the children "are well bonded to her."
At that point, the hearing ended for the day. The court ordered respondent to provide a drug screen and gave her "extra time . . . to show the Court what it is that you can do with your service plan" pending the continuation of the hearing. Respondent tested positive for marijuana.
Hall left the agency and Angelique Miller took over for him on September 23, 2016. Miller testified that respondent was terminated from drug screen services and parenting classes in September for failing to "contact her service provider within a certain amount of time." Respondent had completed only one drug screen since August 25 and it was positive for marijuana. Respondent had attended two family visits since September 23 and interacted appropriately with the children.
The children's foster mother, testified that the girls were placed in her home on March 11, 2016. The foster mother transported the girls to the agency for supervised family visits. Since March 11, 2016, respondent had been offered 29 weekly visits, but that included the period of respondent's last incarceration. Respondent was required to call and confirm her attendance. According to the foster mother's records, only nine visits took place; caseworkers told her "not to come to twenty of the visits." If respondent confirmed a visit and then canceled, the children responded by "crying" and expressing "[a] lot of confusion." Since the last hearing, respondent had attended all visits but one, which was canceled by the agency. The foster mother testified that when visits took place, SW was reluctant to stay with respondent. She also stated that while the girls knew respondent was their mother, "[t]hey do not refer to her as mom." The foster mother was willing to adopt the children.
The trial court followed the referee's recommendation and terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j) [§ 19b(3)(c)(i)—the conditions that led to the adjudication continue to exist; § 19b(3)(g)—the parent is unable to provide proper care and custody; § 19b(3)(j)—the child is likely to be harmed if returned to the parent's home].
B. ANALYSIS
I. SERVICES
Respondent argues that petitioner failed to make reasonable efforts to reunify her with her children. This argument lacks merit.
"In general, petitioner must make reasonable efforts to rectify conditions, to reunify families, and to avoid termination of parental rights." In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008). Specifically, "[r]easonable efforts to reunify the child and family must be made in all cases" unless certain aggravating circumstances are present, MCL 712A.19a(2), and aggravating circumstances did not exist in this case. Petitioner makes "reasonable efforts" when it gives the parent referrals for, and attempts to engage the family in, services. In re JL, 483 Mich 300, 322-323 n 15; 770 NW2d 853 (2009).
The evidence showed that respondent was given multiple referrals for services, including parenting classes, individual therapy, and substance abuse counseling, but did not complete any of them. Respondent was referred for random drug screens and tested positive for marijuana more often than not. Respondent was afforded family visits to preserve and strengthen the parent-child bond, but only visited the children sporadically. While respondent's first period of incarceration delayed the onset of services, services were offered once she was released. Respondent's second period of incarceration interfered with her ability to participate in services following the third referral, but it does not explain her failure to follow through with services either before she was jailed or after she was released and given yet additional referrals. Further, while respondent complains that the foster-care workers did not work with her "in a more individualized manner," she does not identify any particular services that should have been provided apart from "actual and effective housing assistance." But petitioner gave respondent information on low-income housing assistance and respondent has not identified anything more petitioner could have done, nor has she shown that she "would have fared better" had she been offered additional services. See In re Fried, 266 Mich App 535, 543; 702 NW2d 192 (2005).
A respondent has a commensurate responsibility to participate in services that are offered, In re Frey, 297 Mich App at 248, and to demonstrate benefit from those services, In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014). Because the record shows that petitioner made reasonable efforts to reunify respondent with her children and respondent did not take advantage of those efforts, respondent has failed to show that petitioner did not fulfil its obligations under MCL 712A.19a(2).
II. STATUTORY GROUNDS
Next, respondent argues the trial court erred in finding statutory grounds for termination. We review the trial court's finding that at least one statutory ground for termination has been proved by clear and convincing evidence for clear error. In re Laster, 303 Mich App 485, 491; 845 NW2d 540 (2013); MCR 3.977(K). "A finding is clearly erroneous if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Gonzales/Martinez, 310 Mich App 426, 430-431; 871 NW2d 868 (2015) (quotation marks omitted).
Petitioner has the "burden to establish by clear and convincing evidence the existence of a ground for termination." Id. at 431. "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).
The trial court did not clearly err in finding that MCL 712A.19b(3)(c)(i) had been established by clear and convincing evidence. Respondent was a named respondent in this action. The conditions that led to the adjudication included a lack of suitable housing, criminality leading to incarceration, and a history of substance abuse. The initial dispositional order was entered on March 19, 2015. The supplemental petition was filed more than a year later, in June 2016. Respondent was in jail at the time of the initial dispositional hearing, but she was released on June 11, 2015, and had more than 182 days to work toward reunification between then and the time she returned to jail on April 1, 2016. During that time, respondent occasionally visited the children but otherwise did not participate in services. She was given referrals for parenting classes, individual counseling, and substance abuse counseling in June and August 2015, and again in January 2016, but never completed them. In addition to not participating in substance abuse counseling, respondent tested positive for marijuana in August and September 2015, and February 2016. Respondent never obtained housing and, as of March 2016, she was staying at a motel. Respondent was arrested for a new offense and was incarcerated again in April 2016. She was released in June and given new referrals for services in July. She visited the children more often, but otherwise her situation was unchanged and she even tested positive for a controlled substance again during the termination hearing. Considering that respondent had more than a year in which to address the conditions that led to the adjudication and failed to make significant progress, the trial court did not clearly err in finding that the conditions continued to exist and were unlikely to be rectified within a reasonable time given the children's ages. Given that there was at least one statutory ground for termination, we need not consider the additional grounds upon which the trial court based its decision. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
III. BEST INTERESTS
Respondent lastly challenges the trial court's determination regarding the children's best interests, which is also reviewed for clear error. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014); MCR 3.977(K).
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). Whether termination is in the child's best interests is determined by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). If parental rights to more than one child are at stake and the bests interests of the individual children differ significantly, the trial court must decide the best interests of each child individually. In re White, 303 Mich App at 715; In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012).
There were no significant differences between the children's individual circumstances, so the trial court did not need to address their best interests separately. In re White, 303 Mich App at 715. Although there children may have enjoyed somewhat of a bond with respondent, the trial court nevertheless did not clearly err in finding that termination of respondent's parental rights was in the children's best interests. The children were seven and four years old and had been in foster care for two years. They needed safety and permanency and a stable home environment, something that respondent could not provide. Their foster home was apparently meeting that need and the foster parent was willing to adopt. Respondent was never in substantial compliance with her service plan, continued to use narcotics, and had been unable to maintain a stable home or a steady source of income. Respondent was afforded a substantial amount of time to come into compliance with the service plan and her failure to do so showed that she could not provide the stable environment that the children needed. On this record, the trial court did not clearly err in finding that termination was in the children's best interests. In re White, 303 Mich App at 713.
Affirmed.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Stephen L. Borrello