Opinion
No. 351071
05-28-2020
In re Jackson, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Shiawassee Circuit Court Family Division
LC No. 12-013239-NA Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court order terminating his parental rights to his two children. We affirm.
The two children (twins) were removed from the care of mother and respondent-father upon their February 1, 2016, birth due to allegations of prior terminations with respect to both parents, current homelessness, lack of employment/income, lack of necessary baby supplies for the infants, and lack of benefit from services provided to the parents over the past few years. Further, with respect to respondent-father, he was alleged to have a substantial mental health and substance abuse history, a pattern of criminal activity (including six convictions for domestic violence, and arrests for retail fraud, resisting and obstructing arrest, and assault with intent to great bodily harm). When the trial court took jurisdiction over the children, the original petition sought termination; the request for termination was withdrawn by petitioner, however, and the goal changed to reunification.
Respondent-father was incarcerated at the time of the children's birth and remained incarcerated until late June or early July 2018. Throughout his incarceration, respondent-father participated in court proceedings via telephone, and also participated in services that were available to him at the prison. Upon his release, respondent-father began participating in services required of him under a parent-agency agreement, and the goal for respondent-father and the children remained reunification. By June 2019, however, respondent-father was again in prison, allegedly due to assaultive behavior. On June 11, 2019, the DHHS filed a supplemental petition seeking termination of respondent-father's parental rights. At a June 18, 2019 review hearing, the trial court changed the goal from reunification to adoption.
On September 18, 2019, respondent-father pleaded no contest to the allegations in the June 11, 2019 amended petition seeking termination of his parental rights to the children. Respondent-father also testified that he could not currently, and would not within a reasonable time, be expected to be out of prison or able to care for his children. He testified that he believed it was in the best interests of his children that his parental rights be terminated and the children placed for adoption. The trial court thereafter found that there was clear and convincing evidence to support termination under MCL 712A.19b(3)(c)(i), (c)(ii), and (c)(j), and that termination was in the children's best interests.
On appeal, respondent-father contends that the trial court erred in finding that clear and convincing evidence existed to terminate his parental rights because the statutory grounds were not proven by legally admissible evidence; rather, it was only his no contest plea that served as the basis for termination. We disagree.
Under MCL 712A.19b(3), petitioner has the burden of proving a statutory ground for termination by clear and convincing evidence. See MCR 3.977(A)(3) and 3.977(H)(3); In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000). We review for clear error both the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). "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 HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
At the outset, we note that respondent-father entered a no-contest plea to the supplemental petition to terminate his parental rights on September 18, 2019; in fact, he explicitly stated on the record that termination would be in the children's best interests. He does not challenge the appropriateness or soundness of his no-contest plea on appeal. Respondent-father's appeal thus necessarily fails.
In In re Hudson, 294 Mich App at 264; the respondent pleaded no contest to an amended petition seeking termination of her parental rights. This Court found that:
Respondent's plea, therefore, became evidence in the case, and she claims no irregularity pertaining to her 2009 plea. She now argues that the evidence to support termination was not clear and convincing, which is directly contrary to her plea of no contest. Respondent may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit respondent to harbor error as an appellate parachute. People v Green, 228 Mich App 684, 691; 580 NW2d 444 (1998). [Id.]The same holds true here. Respondent-father clearly and unequivocally pleaded no contest to the allegations in the amended petition after being fully advised of the rights he would be waiving by entering the plea. Respondent-father then testified, upon questioning from his own counsel and the trial court, that termination would be in the best interests of his children, as he was again in prison and did not expect to be out within a reasonable time, and that he was not able to care for the children. He cannot now, on appeal, claim that trial court erred in terminating his parental rights when he affirmatively stated, on the record, that he agreed to the termination of his parental rights and that termination would be in the children's best interests.
Moreover, a respondent in a termination proceeding can consent to the termination of his or her parental rights, in which case the trial court need not announce a statutory basis for the termination of parental rights. In re Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992). Nevertheless, there was clear and convincing evidence to terminate respondent-father's parental rights pursuant to MCL 712A.19b(3)(c)(i) and (c)(ii).
While respondent-father argues that the evidence did not comply with the requirements of MCR 3.977(E)(3), that rule applies to termination at the initial disposition—which did not occur here. --------
Termination of parental rights is appropriate if the court finds by clear and convincing evidence that:
(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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age. [MCL 712A.19b(3)(c)(i)-(ii).]
The conditions that led to the adjudication in this matter were respondent-father's long history of substance abuse, severe emotional instability and mental health issues, criminality, extensive domestic violence history, lack of employment, and lack of suitable housing. Respondent father was incarcerated for the first 2 ½ years of the children's lives and, according to DHHS caseworker Stephanie Langham, made no efforts to communicate with the children during his incarceration. While the availability of services was somewhat limited in prison, respondent-father did participate in mental health and parenting services while incarcerated. At a July 9, 2018 hearing, it was indicated that respondent-father had just been released from prison and the trial court gave respondent-father an extended opportunity to participate in services.
At a permanency planning hearing on October 2, 2018, DHHS caseworker Lauren Phelps testified that respondent-father had seen the children only twice since his release from prison on June 18, 2018, and had not contacted the agency in approximately one month. Services were nevertheless continued and, at a January 7, 2019, review hearing, counsel for the DHHS advised the trial court that the DHHS had received documentation showing that respondent-father had been participating in a number of services, including mental health therapy and had completed parenting classes. Counsel indicated that the DHHS still had concerns about respondent-father, however, due to respondent-father's sporadic participation in parenting time, and his failure to adequately sign releases and provide documentation of his compliance with the parent-agency agreement to the DHHS.
At a March 21, 2019, review hearing, counsel for the DHHS stated that, while respondent-father had been participating in services, there was a concern that he was not benefitting from them. Counsel primarily noted some difficulty with the current caseworker's interaction with respondent-father, even though respondent-father had complied with the required mental health services. On June 1, 2019, respondent-father was arrested for allegedly engaging in assaultive behavior toward several individuals and resisting and assaulting a police officer. Respondent-father was believed to be intoxicated at the time. At the time of termination, he was being housed in the mental health section of the prison.
From the above, it can be seen that despite respondent father's years of mental health and emotional therapy and the completion of parenting classes, he did not benefit from them. Having had the opportunity to attend parenting time with the children, he appeared only sporadically, and he still struggled with mental health instability and possible substance abuse issues. Respondent-father was incarcerated less than one year after his prior release on parole and thus was also clearly unable to control his criminal behavior. By his own admission, respondent-father is unable to care for his children and will not be able to do so within a reasonable time considering the children's age and the fact that in their 3 ½ years of life they had not lived with or been cared for by respondent-father. Thus, there was clear and convincing evidence to terminate respondent-father's parental rights pursuant to MCL 712A.19b(3)(c)(i) and (ii).
Respondent-father also argues on appeal that termination was not in the children's best interests because the statutory basis to terminate his rights had not been properly established. Again, we disagree.
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, 297 Mich App 35, 40; 823 NW2d 144 (2012). The "preponderance of the evidence" standard applies to the best-interests determination. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).
Respondent-father's argument is without merit, given this Court's conclusion that clear and convincing evidence supported the finding that a statutory basis for termination existed. Respondent-father additionally cursorily argues in his brief that the trial court should have weighed all available evidence in making the best-interests determination and that each child's best interests should be analyzed individually. This argument is not contained in his statement of questions presented and respondent-father also fails to provide any analysis with respect to this argument. We therefore deem this argument abandoned on appeal. In re BKD, 246 Mich App 212, 218; 631 NW2d 353 (2001).
Briefly addressing this argument in any event, we note that at the September 18, 2019 hearing, the trial court stated that respondent-father had taken parenting classes, undergone group and individual therapy, taken medication for his mental health issues, and undergone substance abuse treatment, yet still failed to put himself in a position where he is able to care for the children. The trial court stated that services had been provided and it was shown that respondent-father had shown no substantive benefit from them. Respondent-father agreed that the children needed permanence (defined, in part, by the trial court as needing to be in a family situation that would not be temporary so that the children knew who they could rely on to help them with the decisions of life, to deal with the good and the bad, and to maintain their safety and health), and agreed that he would not be able to provide that within a reasonable time. The above, taken together with all of the documentary evidence submitted to the trial court, constituted a preponderance of evidence sufficient to find that termination of respondent-father's parental rights was in the children's best interests.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Deborah A. Servitto
/s/ James Robert Redford