Opinion
No. 341564
07-19-2018
In re R. M. JAMES, Minor.
UNPUBLISHED Macomb Circuit Court Family Division
LC No. 2015-000329-NA Before: FORT HOOD, P.J., and SERVITTO and BECKERING, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to her son, RMJ, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), MCL 712A.19b(3)(g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm if returned to parent). We affirm.
RMJ was removed from respondent's care based on substantiated allegations of abuse and neglect in 2015. RMJ was found by law enforcement officials wandering alone alongside a city road. Respondent was jailed following her convictions of driving under the influence and possession of non-prescribed prescription medication, and she admitted to abusing illicit substances and overdosing on prescription medications while RMJ was in her custody. The trial court ordered respondent to complete and benefit from assessments, mental health counseling, substance abuse treatment, parenting classes, and to obtain appropriate housing and maintain a lawful lifestyle. During the pendency of the case, respondent complied in part with Department of Health and Human Services (DHHS) expectations, but violated the terms of her probation by not complying with mandated drug tests and by using and possessing illicit substances, including marijuana and heroin, which resulted in the revocation of her probation and her ultimate incarceration in prison.
I. ANALYSIS
A. STATUTORY GROUNDS FOR TERMINATION
Respondent first argues that the trial court clearly erred by finding that statutory grounds for terminating her parental rights existed. We disagree.
This Court reviews a determination whether statutory grounds exist to terminate parental rights for clear error. In re Dearmon, 303 Mich App 684, 699; 847 NW2d 514 (2014). "Clear error exists when some evidence supports a finding, but a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake." Id. at 700. This Court will defer to the trial court's special opportunity to observe the witnesses when reviewing the trial court's determination. Id.
To terminate parental rights, the trial court must find clear and convincing evidence of one or more of the statutory grounds set forth in MCL 712A.19b(3). In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). In this case, the trial court adopted the referee's recommendations, and terminated respondent's parental rights under the following grounds:
(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, without regard to intent, 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) There 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. [MCL 712A.19b(3)(c)(i), (g), and (j).]
Since the proceedings in this case, MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the new version of the statute, termination is appropriate 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." MCL 712A.19b(3)(g) as amended by 2018 PA 58 (emphasis added).
1. CONDITIONS LEADING TO ADJUDICATION
Clear and convincing evidence supported termination under MCL 712A.19b(3)(c)(i).
The petition alleged that RMJ would be harmed if he remained in respondent's care because respondent was neglectful in caring for him and she had unaddressed substance abuse issues. The petition recounted similar allegations made against respondent in 2013, when she left RMJ with strangers while she went on a "drug run" to Detroit. The petition stated that respondent had recently overdosed and was hospitalized, and that she admitted she used prescription medications that she was not prescribed. Additionally, a DHHS caseworker made an unannounced visit to respondent's home and observed that respondent was acting erratically, that marijuana was in a laundry basket that was accessible to RMJ, and that RMJ was not at school and had not been fed by midday.
Clear and convincing evidence supports the conclusion that respondent did not rectify the conditions leading to adjudication and that they would not be rectified in a reasonable amount of time. The record reveals that respondent's care for RMJ is impacted by her drug use. In 2013, respondent's substance abuse issues caused her to put RMJ in harm's way by leaving him unattended and with strangers while she went to obtain drugs. In 2015, respondent admitted to abusing illicit substances while RMJ was in her custody. During this time period, RMJ "got out" of respondent's home and was found unsupervised on a busy street. Respondent's substance abuse continued after receiving therapy and counseling, and led to her violating her probation on numerous occasions and, ultimately, her imprisonment. DHHS ordered respondent to obtain and benefit from mental health counseling and substance abuse counseling; to maintain a lawful lifestyle; and to comply with random drug screenings and refrain from using illicit substances. While on probation during the course of this case, and while subject to a DHHS parent-agency treatment plan, respondent violated the terms imposed by the court, MDOC, and DHHS numerous times by possessing and using illicit substances. Respondent has overdosed while RMJ was in her custody, admitted to using drugs not prescribed to her, and admitted to selling prescription medication. Months after returning from an inpatient substance abuse program, respondent missed numerous mandated drug tests and admitted to using heroin as recently as June of 2017. Before her most recent incarceration, she tested positive for marijuana and admitted to using non-prescribed prescription medication.
Respondent has demonstrated throughout the pendency of this case that she is unable to abstain from the use of illicit substances, despite the counseling and inpatient treatment services provided by DHHS. It is more troubling, and is perhaps an indication of her future ability to remain clean, that before being imprisoned, she chose to use drugs despite being ordered to provide urine samples at random while under the supervision of both the MDOC's probation department and DHHS, and despite the possibility of losing her parental rights to RMJ. In this tightly monitored environment, respondent still did not comply with DHHS's orders to remain drug free. Her repeated choice to use illicit substances under these circumstances substantiates a finding that the conditions leading to adjudication (respondent's substance abuse) had not been rectified within 182 days of the initial dispositional order in the case. MCL 712A.19b(3)(c)(i).
A DHHS foster care worker testified that respondent's imprisonment was a barrier to receiving necessary parenting classes and substance abuse therapy to rectify the conditions leading to adjudication. The worker testified that respondent needed to complete additional "hands-on" parenting classes and substance abuse treatment, but was unable to do so in prison. At the time of the termination hearing, respondent was incarcerated, and DHHS represented that the psychological services and parenting classes from which respondent needed to benefit were unavailable. Given respondent's lengthy substance abuse history, her demonstrated inability to benefit from counseling and inpatient treatment, and her incarceration resulting from her repeated substance abuse, we are not persuaded that the trial court clearly erred in concluding that the conditions leading to adjudication would not be rectified within a reasonable time given RMJ's age.
2. CARE AND CUSTODY
Clear and convincing evidence supported termination under MCL 712A.19b(3)(g).
A parent's incarceration does not automatically foreclose the individual from providing proper care and custody to his or her child. See, e.g. In re Mason, 486 Mich 142, 183 n 11; 782 NW2d 747 (2010). A parent may place his or her child with a family member during a period of incarceration. Id. RMJ's father voluntarily terminated his parental rights to RMJ. DHHS investigated the family member respondent identified as capable of caring for RMJ, and determined that this family member had a substance abuse issue and prior involvement with law enforcement authorities that would disqualify her from caring for RMJ.
The record shows that in the past while respondent was abusing illicit substances, she left RMJ with strangers while going on a "drug run"; did not provide adequate supervision to the child or feed him at an appropriate time; left illicit psychoactive drugs within his reach; overdosed on prescription medications while he was in her care; used marijuana, heroin, and prescription medications in violation of DHHS and MDOC expectations; and, despite orders to the contrary, did not obtain appropriate housing. At the time of the termination hearing, respondent's release date from prison was uncertain. Evidence was presented that respondent had not made sufficient progress with her substance abuse issues and did not make plans for providing care or custody to RMJ upon her release from prison. Further, these problems had gone unaddressed while respondent was imprisoned, because she was unable to participate in necessary hands-on parenting classes with RMJ and specialized therapy was unavailable in prison.
Respondent's demonstrated history of neglect has been shown to be exacerbated by substance abuse. Given her inability to remain drug free, despite receiving extensive counseling and treatment, there is no clear error in the trial court's conclusion that respondent failed to provide proper care or custody for RMJ and that there is no reasonable expectation that she would be able to do so within a reasonable time given his age.
3. HARM
Clear and convincing evidence supported termination under MCL 712A.19b(3)(j).
MCL 712A.19b(3)(j) states that termination is appropriate when "[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." "Significantly, just as incarceration alone does not constitute grounds for termination, a criminal history alone does not justify termination." In re Mason, 486 Mich at 165.
With regard to subsection (3)(j), DHHS presented evidence that respondent's negligent care previously put RMJ in physical danger and that her deficiencies at the time of the termination hearing would place him in danger if returned to her care. In the beginning of the case, RMJ was returned to her care after being found wandering on a city street. Respondent admitted that in the past, while using illicit substances, she left RMJ with strangers. When RMJ was in her care, respondent often failed to take him to school, as evidenced by his attendance record, and evidence was presented that upon random inspection on one occasion, RMJ had not been fed by noon. Evidence was also presented that while caring for RMJ, respondent used marijuana, left it within reach of the child, and also overdosed on medication, requiring hospitalization.
After being incarcerated, respondent attended inpatient substance abuse therapy, but just months after release from the program, she used marijuana and heroin, resulting in a prison sentence for violating the terms of her probation. Evidence of respondent's previous inability to care for RMJ, and her demonstrated lack of compliance with DHHS expectations because of persistent substance abuse issues, support the conclusion that termination was appropriate under subsection (3)(j). "Clear error exists when . . . a review of the entire record leaves the reviewing court with the definite and firm conviction that the lower court made a mistake." In re Dearmon, 303 Mich App at 700. Given respondent's numerous failures to care for RMJ while she was using drugs, and demonstrated inability to refrain from drug use despite receiving counseling and therapy, we discern no error in the trial court's conclusion that termination was appropriate under MCL 712A.19b(3)(j).
While in prison, respondent has been unable to complete therapy and "hands-on" parenting skills classes from which DHHS averred she will benefit. --------
B. BEST INTERESTS
Respondent next argues that the trial court clearly erred in concluding that termination of respondent's parental rights was in RMJ's best interests. We disagree.
An appellate court "review[s] for clear error . . . the court's decision regarding the child's best interest." In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). "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." In re Olive/Metts Minors, 297 Mich App at 42, quoting MCL 712A.19b(5). The determination of a child's best interests is made on the basis of the preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). Factors to consider include child-parent bonding; parenting skills; "the child's need for permanency, stability, and finality[,]" and how the home placement compares with the parent's home. In re Olive/Metts, 297 Mich App at 42. The trial court may also consider "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." In re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015), citing In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). In addition, the court may consider "the [child's] well-being while in care, and the possibility of adoption." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
DHHS presented ample evidence to support the trial court's determination that termination of respondent's parental rights was in RMJ's best interests. Kelly Hood, a DHHS foster care worker, testified that termination of respondent's parental rights was in RMJ's best interests because the case had been pending for two years; RMJ deserved permanency and stability rather than moving often, as he had done during the case; his foster parents were very committed to accommodating him; he did not speak about his mother's home as home anymore; and respondent was incarcerated without a definite release date. Evidence was presented that instead of attempting to maintain a bond with RMJ while incarcerated through letters to the child, respondent bartered away her stationery, which she needed to write to RMJ, for goods she desired. Hood also testified that respondent's home while she was not incarcerated was unfit for RMJ. Moreover, although respondent made some effort in attending parenting classes and substance abuse counseling and therapy, the threat of further incarceration and losing RMJ have together not served as sufficient deterrents for respondent to refrain from drug use. Given the aforementioned evidence and respondent's previous history of abusing illicit substances despite the possibility of extreme consequences, it may reasonably be inferred that respondent had made insufficient progress in resolving her parenting skills deficiencies, and would not be able to provide safety or stability for RMJ.
Also supporting the trial court's best-interests determination are the length of time RMJ was in DHHS's care (approximately two years), the likelihood that the child could be returned to respondent's home within the foreseeable future (uncertain due to her undefined post-release housing situation), and respondent's demonstrated lack of compliance with the parent-agency agreement. In re Payne/Pumphrey/Fortson, 311 Mich App at 64. In addition, RMJ was adjusting well to his new foster home and felt safe and was thriving there, having bonded with his foster care family, and his foster home was the most "home-like" and "non-restrictive" environment in which he had been placed during pendency of the case. See In re White, 303 Mich App at 714. The trial court did not clearly err in concluding that termination of respondent's parental rights was in RMJ's best interests.
C. REASONABLE EFFORTS
Finally, respondent argues that the trial court erred in concluding that reasonable efforts were made to reunite RMJ with respondent. We disagree.
This Court reviews the trial court's findings of fact regarding whether DHHS made reasonable efforts to provide respondent with services aimed at reunification for clear error. See, e.g., In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005) (observing that the trial court's findings regarding whether reasonable efforts were expended to "preserve and reunify the family[ ]" are reviewed for clear error).
"Under Michigan's Probate Code, [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). Reasonable efforts begin with the creation of a case services plan aimed at rectifying the conditions that caused the child's removal. In re Fried, 266 Mich App at 542; see also MCL 712A.18f(3)(d) (stating that the service plan shall include a "[s]chedule of services to be provided to the parent . . . to facilitate the child's return to his or her home"). DHHS also has obligations under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., "that dovetail with its obligations under the Probate Code." In re Hicks/Brown, 500 Mich at 86. Under the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity . . . ." 42 USC 12132. "Public entities, such as [DHHS], must make 'reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless . . . the modifications would fundamentally alter . . . the service' provided." In re Hicks/Brown, 500 Mich at 86, quoting 28 CFR 35.130(b)(7) (2016). Importantly, however, "[w]hile [DHHS] has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondent[ ] to participate in the services that are offered[ ]" and "demonstrate that [she] sufficiently benefited from the services provided." Frey, 297 Mich App at 248.
Respondent argues that DHHS was aware that she had multiple sclerosis (MS) and needed to be accommodated, but that DHHS did not accommodate her disability. However, the record shows that DHHS made reasonable accommodations with respect to the only accommodation respondent requested due to her disability. Respondent's counsel asked Hood on the record if respondent was being given bus passes to facilitate her visits with RMJ. Counsel averred that it was difficult for respondent to travel the distance between her residence and RMJ's placement. Hood stated that because respondent said that she would be unable to walk to the bus stop to utilize bus passes, DHHS moved visitations to an office closer to respondent's residence, and respondent indicated that she would be able to get to that office more easily. Reasonable accommodations were therefore provided in accordance with respondent's request.
To the extent that respondent suggests in her brief on appeal that she had a mental health disability that was not accommodated, the specifics of her claim are unclear, particularly where the record does not yield any indication that respondent had a mental health disability. Moreover, respondent does not offer any detail in her brief on appeal concerning (1) what alleged mental health disability was not properly accommodated or (2) how DHHS failed to properly accommodate her. There is some indication in the record that DHHS staff were advised that following verbal testing performed on respondent, they were to use simple communication in their interactions with her. Specifically, Hood testified during the October 24, 2017 termination hearing that she was not aware of respondent having any impairment or disability, but that because respondent's vocabulary was limited, DHHS staff used more simple words to communicate with her, and if respondent did not understand something, Hood would need to restate it until respondent did comprehend what was said. However, the record does not support respondent's allegation that she had a mental health disability that DHHS did not properly accommodate.
Finally, respondent also argues that DHHS failed to make reasonable efforts to ensure that she could receive services while she was incarcerated. In support of her claim, respondent points to the Michigan Supreme Court's decision in In re Mason. As respondent points out in her brief on appeal, a review of the transcript from the May 11, 2016 hearing confirms that the trial court had to instruct the DHHS foster care worker, Marquita Austin, to make contact with respondent while she was incarcerated in the Oakland County Jail, and to assist her with pursuing services in the jail. However, at the July 13, 2016 hearing, Austin reported to the trial court that after speaking with the counselling department at the Oakland County Jail, it was discovered that the jail did offer services consistent with what respondent needed to complete as part of her agreement with DHHS. Respondent had in fact participated in the JAWS program for substance abuse, but was terminated from the program because she was placed in lockdown for her behavior. As of July 13, 2016, respondent had been placed on a waiting list to resume her services in the jail. Austin also reported on July 13, 2016 that she had followed up with regard to parenting classes respondent could participate in while incarcerated, and was awaiting a response from the individual contacted.
While the record does reflect that some of the services that respondent needed to complete were not available while she was incarcerated, we are not persuaded that the present facts are similar to In re Mason, where the Michigan Supreme Court concluded that the trial court had erroneously terminated the respondent father's parental rights after he was incarcerated for a drunk driving conviction, and the record in that case demonstrated that he was not provided with access to services. In re Mason, 486 Mich at 163. Significantly, the Court in In re Mason also observed that throughout the termination proceedings, DHHS completely failed to involve the respondent solely on the basis of his incarceration. Id. at 160. Given the "overriding error" in that case, that being the failure of both the trial court and DHHS "to acknowledge and honor [the] respondent's right to participate[,]" in the termination proceedings, the In re Mason Court reversed the trial court's order terminating his parental rights. Id. at 168. In contrast, the record in this case confirms that DHHS provided respondent with services, including parenting classes, substance abuse therapy and inpatient substance abuse treatment, but respondent continued to use illicit substances and was incarcerated as a result. DHHS's inability to continue these services was therefore attributed to respondent's repeated criminal violations and resulting incarceration, and there is no suggestion in the record that DHHS disregarded respondent's statutory right to services or failed to involve her in the lower court proceedings. Id. at 159, 160. Accordingly, respondent's reliance on In re Mason is not persuasive.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
/s/ Jane M. Beckering