Opinion
No. 352276
09-10-2020
In re KIRKLAND, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2019-872950-NA Before: MARKEY, P.J., and K. F. KELLY and TUKEL, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to her minor children, JBK and JMK, under MCL 712.19b(3)(g), (i), and (j). On appeal, respondent challenges only the trial court's best-interests findings. This appeal is being decided without oral argument pursuant to MCR 7.214(E)(1). We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
After JMK was born with marijuana, opiates, methadone, and cocaine in his system, petitioner filed a petition to terminate respondent's parental rights to JBK and JMK. The petition alleged that respondent did not have suitable housing; her parental rights were previously terminated as to six other children; she had a conviction of unlawfully driving away a vehicle; she was on parole for that conviction; and she was subsequently arrested for failure to pay child support for violating parole.
The petition also sought to terminate the parental rights of respondent's husband to JBK and JMK. Respondent's husband is also the father of JBK and JMK. Respondent's husband is not a party on appeal. --------
The proceedings focused on respondent's drug use and its effect on her ability to parent JBK and JMK, maintain stable employment, and obtain suitable housing. Respondent admitted at the adjudication hearing that she used cocaine during several of her pregnancies, including while pregnant with JMK, and that she engaged in prostitution, theft, and robbery to fund her drug habit. Later, at the best-interests hearing, Dr. Melissa Sulfaro, the Chief of Clinical Services at the Oakland County Court Psychological Clinic, opined that it was not in the best interests of respondent's children for respondent to retain her parental rights. Dr. Sulfaro believed it was "not likely" respondent would maintain sobriety; she also believed that JBK and JMK would be at risk of emotional harm if respondent was given more time to demonstrate her sobriety and to demonstrate that she could provide stability for her children. Additionally, respondent's parole officer testified about respondent's failure of multiple drug tests and her failure to attend outpatient treatment. Despite being angry about attending inpatient treatment, respondent went, but she made several requests to leave the facility. Alison Desmone, the foster care worker assigned to respondent's case, testified that she did not believe JBK and JMK could be returned to respondent's care because of her lack of suitable housing, legal income, and the fact that she had been sober for only a short period of time. Finally, respondent also testified. Specifically, at the best-interests hearing, respondent acknowledged that she had serious substance abuse issues in the past, but asserted that this time was different. Respondent testified that she loved JBK and JMK and that she wanted to change so she could be a better mother to them. Respondent additionally explained that she missed some of her visitations with JBK and JMK because of family medical issues, her job, and miscommunication regarding transportation.
At the final best-interests hearing, the trial court concluded it was in "their best interests [JBK and JMK], each individually, to terminate [respondent's] rights." Although the trial court was encouraged by respondent's "recent sobriety," it acknowledged that respondent's drug issues existed "for almost half [her] life." The trial court concluded respondent was not bonded with JMK and took issue with her drug use while pregnant. In addressing respondent's parenting skills, the trial court noted that while it was a "horrible choice to pick between your mother and your kids," in reference to incidents in which respondent missed visits with JBK and JMK because of her mother's medical issues, respondent "ha[d] to pick the kids." Moreover, the trial court found that termination of respondent's rights would provide JBK and JMK with the permanency, stability, and finality they needed. The trial court additionally noted that JBK had been in care "for a lot of his young life" and JMK for his whole life. Finally, the trial court also found that respondent "went to five inpatients" and, after getting out, tested positive for drugs five times, and was concerned with respondent's unwillingness to attend inpatient treatment. In light of all of its findings, the trial court terminated respondent's parental rights to JBK and JMK.
II. BEST INTERESTS AND INDIVIDUALIZED FINDINGS
Respondent argues that the trial court erred in concluding it was in the best interests of JBK and JMK to terminate her parental rights because it failed to view JBK and JMK individually in determining whether termination of respondent's parental rights was in each child's respective best interests. 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 Minors, 297 Mich App 35, 40-41; 823 NW2d 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 NW2d 182 (2013). The trial court's ruling regarding best interests are reviewed for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). "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 NW2d 111 (2011). Furthermore, "[t]his Court gives effect to the Legislature's intent as expressed in the statute's terms, giving the words of the statute their plain and ordinary meaning. When the language poses no ambiguity, this Court need not look beyond the statute or construe the statute, but need only enforce the statute as written." In re LE, 278 Mich App 1, 22-23; 747 NW2d 883 (2008), abrogated on other grounds as recognized by In re Long, 326 Mich App 455; 927 NW2d 724 (2018) (citations and quotation marks omitted).
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). 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 Minors, 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 [sic] 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 NW2d 407 (2000), superseded by statute on other grounds as recognized in In re Moss, 301 Mich App at 83. In cases involving 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.
The trial court was not required to explicitly make individual and redundant factual findings regarding each child's best interests here because their best interests did not significantly diverge. JBK was seven years old and JMK was less than one year old when respondent's parental rights were terminated. Respondent argues that the best interests of JBK and JMK significantly differed because of their age differences and living arrangements. But despite their age differences, JBK and JMK both needed a safe, stable, and loving home where they would be a priority. Respondent's substance-abuse issues, criminal history, and lack of stable employment and suitable housing equally affected JBK and JMK, regardless of their ages. Moreover, although they resided in different nonrelative foster homes, both children were thriving. Thus, respondent's argument that the best interests of JBK and JMK significantly differed because of their age differences and living arrangements is without merit. As such, the trial court was not required to consider their best interests individually. See In re White, 303 Mich App at 715-716.
That being said, when making its best-interests determination, the trial court made the following statement to respondent about JBK and JMK: "I do find it's in your best—their best interests, each individually, to terminate your rights." (Emphasis added). Consequently, contrary to respondent's argument, the trial court did find that termination of respondent's parental rights was in the best interests of JBK and JMK individually. The fact that the trial court did not specifically address in greater detail how its findings affected JBK and JMK individually is irrelevant because any such individualized findings would have been redundant. See id. Nevertheless, we will now address whether the trial court erred by finding that termination of respondent's parental rights was in the best interests of JBK and JMK.
One of the main issues in this case was respondent's substance-abuse history and its effect on her ability to parent JBK and JMK. See In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009) (noting that a respondent's past history is a relevant consideration when determining whether to terminate parental rights). Both children were affected by respondent's long history of drug abuse because it contributed to her inability to provide a safe, stable, and permanent home. Respondent had drug issues for approximately 17 years, which included the use of crack cocaine, heroin, opiates, fentanyl, and marijuana. Respondent's longstanding drug use led to the earlier termination of her parental rights to six of her other children. But those terminations did not stop her drug use. In fact, respondent continued to use drugs, including while pregnant with JMK and several of her other children; respondent's drug use even continued after the petition to terminate her parental rights was filed in this case. Additionally, approximately one month after JMK was born and respondent was released from jail, respondent began using drugs again. Similarly, despite participating in and finishing several substance-abuse therapy programs, respondent continued using drugs. Furthermore, respondent's recent participation in the Naomi's Nest inpatient program during the pendency of this case was met with respondent's frustration and anger, and repeated requests to her parole officer to leave treatment before completion. Such frustration, anger, and attempts to leave treatment demonstrate an unwillingness from respondent to attempt to change and improve her ability to parent JBK and JMK.
Additionally, Dr. Sulfaro's testimony established concerns about respondent's ability to provide a stable environment with consistent housing and income as well as the likelihood respondent would maintain sobriety, given her long history of substance abuse and relapse. Dr. Sulfaro noted respondent was in "treatment two times even during the pendency of this case and has continued to use [drugs]." Further, Dr. Sulfaro believed JBK and JMK would be at risk of emotional harm if respondent was given more time to demonstrate her sobriety and provide stability for the children, and that because of their young ages, permanency and stability were critical to the well-being of JBK and JMK. Similarly, Desmone, the foster care worker assigned to respondent's case, believed that JBK and JMK could not be returned to respondent's care because of respondent's issues with obtaining consistent employment and housing, which stemmed from her inability to remain sober. Moreover, Desmone testified about respondent's missed visitations, noting that respondent missed several visits with JBK and JMK because respondent's mother was in the hospital and respondent's older daughter had pregnancy complications. The trial court, when evaluating respondent's visitation history with JBK and JMK, concluded that while it was a "horrible choice to pick between your mother and your kids," respondent "ha[d] to pick the kids," meaning JBK and JMK, given the state of this case. Further, despite acknowledging that her husband was a trigger for her drug use, respondent was still emotionally attached to him, struggled to end her relationship with him, remained married to him, and continued to have contact with him.
Respondent's criminal history, although not explicitly discussed by the trial court in its decision to terminate her parental rights, also contributed to respondent's inability to parent JBK and JMK. Respondent had a history of incarceration and violating probation and parole to continue using drugs. Respondent engaged in prostitution, theft, and robbery to fund her drug habits, had a felony unlawful driving away of an automobile conviction, and was arrested for failure to pay child support. With such a lengthy history of criminal activity, respondent spent a significant amount of time incarcerated that could have otherwise been spent parenting her children. Thus, respondent's criminal behavior has also rendered her unable to provide the care her children require, affecting both of them equally.
Similarly, respondent's inability to maintain consistent employment and obtain suitable housing also equally affected JBK and JMK. Despite being employed in January 2019, respondent quit her job in order to continue using drugs. Respondent was not employed again until November 20, 2019, and had only been employed for approximately six days as of the second day of the best-interests hearing. Moreover, respondent did not have a driver's license or vehicle, and was reliant on her mother to get to work and other locations. Even so, respondent's mother had severe health issues and was not a consistent or reliable method of transportation. Further, after respondent's release from jail in April 2019, she lived with her mother in a one-bedroom apartment. Although respondent had applied for her own apartment, her application was denied because of bad credit. As petitioner points out, from April 2019, when JMK was born, to the best-interest hearing in November 2019, respondent failed to obtain suitable housing for herself or the children. Thus, respondent's failure to maintain employment and secure suitable housing equally affected JBK and JMK.
Finally, the evidence also established that respondent was unwilling to prioritize her children's needs over her own and that this negatively affected both children equally. Respondent continued to use drugs even after her parental rights to six of her other children were terminated and she knew that she was pregnant with JMK. As petitioner points out, respondent did not initially have custody of JBK when the petition to terminate her parental rights to JBK and JMK was filed. Before the petition was filed, respondent visited JBK only once or twice a month and left JBK in her husband's care despite knowing of her husband's drug use. Moreover, despite having several opportunities to see JBK and JMK during the proceedings, respondent missed several visits and did not attempt to make them up. Thus, respondent failed to make critical efforts to spend time with JBK and JMK, bond with them, and put their needs before her own. Respondent's actions equally affected JBK and JMK and, as a result, their best interests did not significantly differ to such a degree as to require the trial court to make individual and redundant best-interest findings for each child. See In re White, 303 Mich App at 715-716. Thus, the trial court did not err at all, let alone clearly err, in determining that termination of respondent's parental rights to JBK and JMK was in the children's best interests.
III. CONCLUSION
For the reasons stated in this opinion the trial court's order terminating respondent's parental rights is affirmed.
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel