Opinion
No. 348836
01-21-2020
In re I. L. KIRSCH, Minor.
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 UNPUBLISHED Oakland Circuit Court Family Division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. 2017-852528-NA Before: RIORDAN, P.J., and SAWYER and JANSEN, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's order terminating his parental rights to the minor child, ILK, pursuant to MCL 712A.19b(3)(g) and (j). For the reasons provided below, we affirm.
I. SELF-REPRESENTATION
Respondent first argues that the trial court's decision to allow him to represent himself during the lower court proceedings denied him due process. Respondent did not include this issue in the statement of the questions presented in his brief, as required by MCR 7.212(C)(5). Therefore, at the outset, this issue is abandoned. See Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 543; 730 NW2d 481 (2007); In re BKD, 246 Mich App 212, 218; 631 NW2d 353 (2001).
Moreover, review of this unpreserved issue indicates that respondent has not demonstrated any plain error that affected his substantial rights. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014) (stating that review of unpreserved constitutional issues is for plain error affecting substantial rights). In this case, respondent repeatedly and intentionally waived his right to counsel. He asserted that he wanted to represent himself and that he was competent to do so. While the trial court at times expressed concerns about respondent's competency and the manner in which he was conducting himself during the proceedings, the court in each instance allowed respondent to represent himself only after undergoing competency evaluations and being found competent, or completing mental-health treatment. The court also sought to help protect respondent's rights by appointing stand-by counsel to assist. In short, while respondent exhibited odd and questionable behavior during the proceedings that perhaps suggested that he was not competent, the competency evaluations conducted by mental-health professionals showed otherwise. Accordingly, respondent has failed to show how it was plainly erroneous for the trial court to allow respondent to represent himself.
One evaluation apparently showed that respondent was not competent, but after that evaluation, he was treated and released from treatment.
Moreover, respondent has failed to show how if any error existed, how the outcome would have been any different had stand-by counsel represented respondent during the proceedings. See In re Williams, 286 Mich App 253, 278; 779 NW2d 286 (2009) ("An erroneous deprivation of appointed counsel for child protective proceedings can be subject to a harmless error analysis."); In re Hall, 188 Mich App 217, 222-223; 469 NW2d 56 (1991). The evidence was overwhelming that respondent put ILK in danger—both physically and emotionally—with his actions, which included angrily wielding a shotgun in her presence; choking and dropping ILK's mother in front of her; preparing to shoot at police who were conducting a welfare check with ILK present; and keeping ILK and her mother locked in a trailer for two days, which had been in a "deplorable" condition for a month. In short, there is nothing in the record to suggest that the outcome of the proceeding would have been any different regardless of who was representing respondent, and his claim necessarily fails.
II. STATUTORY GROUNDS
Respondent next argues that the trial court erred by finding that there were statutory grounds to terminate his parental rights. We disagree. This Court reviews a trial court's finding whether a statutory ground for termination has been proven by clear and convincing evidence for clear error. In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). A finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake was made. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011).
A trial court must terminate a parent's parental rights if it finds that a statutory ground under MCL 712A.19b(3) has been established by clear and convincing evidence and that termination is in the child's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The trial court terminated respondent's parental rights under MCL 712A.19b(3)(g) and MCL 712A.19b(3)(j), which provide:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(g) The 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.
* * *
(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.The trial court did not clearly err by finding that both statutory grounds were proven by clear and convincing evidence.
Respondent maintains that the trial court made no specific findings related to statutory ground (3)(g). While the court's findings were more focused on statutory ground (3)(j), those findings nevertheless were applicable for ground (3)(g) as well. The court stated in its opinion and order:
Based on the credible testimony of responding officers, Mother, and Father's own family members, it is evident that Father suffers from severe unchecked mental health issues that have put Minor in direct and serious danger. Father exhibited no concern that Minors were in proximity to dangerous weapons such as an assault rifle and shotgun that he in fact threatened his own father with. Father showed no ability to make rational decisions regarding even his own safety when he charged law enforcement. Father strangled Mother while IK was right by her legs and clearly had no concern about her witnessing this violent act or the affect [sic] it would have on the unborn child. [Respondent's mother] testified that Father has gotten 2 jobs and began taking medication, but she admitted she only occasionally sees him and has taken him to therapy just twice since he was released. Furthermore, the testimony reveals that Father continues to believe that Mother is working with DHHS to have his children removed, but fails to consider how his own behavior has led to his children's removal. Based on his conduct, it is abundantly clear that there is a reasonable likelihood that IK would be harmed if returned to Father's home. Given Father's continued denial of his role in creating a dangerous, violent, and neglectful environment for his children, the Court finds that it has been proven by clear and convincing evidence that statutory grounds exist to terminate Respondent Father's parental rights to IK.
The trial court found that respondent had put ILK in danger by wielding dangerous weapons near her and had not provided proper care when he "strangled Mother while IK was right by her legs," having "no concern about her witnessing this violent act." These findings are not clearly erroneous. Both respondent's father and ILK's mother testified regarding these events, and their testimony went unopposed. Therefore, although the court arguably couched these findings in the context of statutory factor (3)(j), there was evidence to show that respondent, although financially able to do so, failed to provide proper care and custody of ILK.
Further, while the court's express statement that "it is abundantly clear that there is a reasonable likelihood that IK would be harmed if returned to Father's home" does tend to show that the court was focused on statutory ground (3)(j), the fact that there is a reasonable likelihood that ILK would be harmed under respondent's care also necessarily speaks to whether he is "able to provide proper care and custody." The trial court supported this conclusion based on the fact that there was little to no evidence to show that respondent's behavior had changed. The court's findings that respondent has attended therapy just twice since his release from jail also shows that he is not adhering to the service plan, and "[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 at 710. Therefore, the trial court did not clearly err by finding that there was clear and convincing evidence to support termination under statutory ground (3)(g).
And with regard to statutory ground (3)(j), termination is proper if "[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." As already discussed, the trial court found that there was a reasonable likelihood that ILK would be harmed if returned to respondent, primarily due to respondent's "severe unchecked mental health issues." Notably, the type of harm contemplated by (3)(j) includes both physical harm and emotional harm. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). The evidence shows that respondent had committed violent acts against ILK's mother numerous times, with the last instance being done in the presence of ILK and some other instances being done in the presence of ILK's older half-sibling. This type of activity, although not physically harmful to respondent's children, certainly would cause them emotional harm. Thus, respondent's implicit suggestion that he has "never harmed his children" is misguided. Given respondent's unresolved mental health issues, there clearly was a reasonable likelihood that ILK would be harmed, either emotionally or physically, if returned to respondent.
Respondent favorably cites In re Pops, 315 Mich App 590, 600; 890 NW2d 902 (2016), in which this Court stated that MCL 712A.19b(3)(j) was not proven where there was no evidence that the respondent "ever harmed his child or was likely to harm his child." --------
III. BEST INTERESTS
Respondent also argues that the trial court erred by finding that it was in the best interests of ILK to terminate his parental rights. We disagree. This Court reviews a trial court's best-interest determination for clear error. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012).
As indicated earlier, once a trial court has found that there are statutory grounds to terminate parental rights under MCL 712A.19b(3), the court must terminate the parent's parental rights if it is in the child's best interests. MCL 712A.19b(5); In re White, 303 Mich App at 713. In making this best-interest determination, "the court may consider the child's bond to the parent, the parent's parenting ability, [and] the child's need for permanency, stability, and finality." In re Olive/Metts, 297 Mich App at 41-42 (citations omitted). "[T]he preponderance of the evidence standard applies to the best-interest determination." In re Moss, 301 Mich App at 83.
The trial court did not clearly err by finding that termination was in ILK's best interests. The court found that respondent had repeatedly refused therapeutic services and only took parenting classes after the best-interest hearing had begun. The court also found that the motel in which respondent lived was not appropriate for children. Moreover, the court was concerned about respondent still believing he is the target of various conspiracies and respondent having indicated that he would use violence if his children were removed. In short, the court found that respondent's actions demonstrated that even while being monitored by the court system, "he cannot demonstrate self-control or proper decision making that could put IK at risk of harm." All of these findings are amply supported by the record and are not clearly erroneous. Indeed, respondent on appeal does not really contest these findings. Instead, he avers that because ILK had been placed with the mother, there was no need to terminate his parental rights. Respondent cites the body of law that provides that "a child's placement with relatives weighs against termination." In re Olive/Metts, 297 Mich App at 43 (quotation marks and citation omitted). But respondent fails to recognize that a "relative" under the statute does not include a "parent." MCL 712A.13a(1)(j). Thus, the fact that ILK had been placed with her mother does not weigh against terminating respondent's parental rights, and respondent's reliance on that principle of law is misplaced.
Affirmed.
/s/ Michael J. Riordan
/s/ David H. Sawyer
/s/ Kathleen Jansen