Opinion
No. 333494
01-10-2017
In re KOTEWA, Minors.
UNPUBLISHED Bay Circuit Court Family Division
LC No. 14-011627-NA Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ. PER CURIAM.
Respondent father appeals as of right the trial court's order terminating his parental rights to his minor children, CK (d/o/b June 11, 2004) and EK (d/o/b June 4, 2005), pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j). For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
Respondent father shot and killed a man in Tennessee in 2005 when CK was a year old and while respondent mother, his wife at the time, was pregnant with EK. Respondent father pleaded guilty to second-degree murder and was imprisoned in 2005. According to respondent father, his release date was 2019, but he expected to be released early in November or December 2017. CK and EK were left in the care of respondent mother.
On March 12, 2014, petitioner DHHS filed a petition. According to the petition, DHHS received a referral on March 11, 2014, which explained that respondent mother left the children unsupervised in a car for between 10 and 30 minutes while she was at a friend's home. At a home visit conducted the following day, respondent mother admitted she used marijuana. At the time, respondent mother had an open Category II case based on allegations of improper supervision. That case stemmed from an incident that occurred on January 17, 2014, when she left the children alone in a running vehicle for over 30 minutes. Respondent mother also had two other prior cases, which apparently were no longer open. One stemmed from an incident on July 2, 2010, when another child in her care, (RV d/o/b October 17, 2008), was found at a neighbor's home, where he had been for 35 minutes. Police took RV back to respondent mother's home and found it smelled of marijuana. The second case came about because a fourth child (IK) of a different father was born to respondent mother with hydrocodone, hydromorphone, and THC in her system at birth. Respondent mother refused to participate in services at the time of IK's birth.
The proceedings following the instant petition went on for approximately two years before the trial court held a termination hearing. In the interim, respondent mother was generally uncooperative with services, and by the end of the case, had disappeared. Respondent father was still incarcerated. He did complete services that were available to him in prison, and he communicated with his children through written correspondence. However, he was unable to find any appropriate placements for the children in his absence.
At the termination hearing, evidence showed that CK and EK disclosed that they were physically abused by Shawn, the boyfriend of respondent mother. EK stated that the home would have no food at times and she would eat from the garbage. CK and EK both had lice when they came into the court's jurisdiction.
When the children came into foster care, CK was very strong-willed and did not handle structure or authority well. Her foster parents utilized rule charts to help her visualize what was expected of her. Generally, the children all lacked structure; they wanted to "eat whenever they wanted to eat. They wanted a bedtime whenever they wanted a bedtime." CK and EK were physically aggressive with each other and CK was also sexually aggressive toward her foster father. The foster parents reported that the girls were making progress.
Caryn Painter, the family's caseworker, explained that respondent father was incarcerated in the West Tennessee State Penitentiary. Painter had difficultly contacting respondent father, and even more difficulty contacting his counselor. She was able to have family team meetings with respondent father. Respondent father also provided "documentation as to programs that he had completed down in the prison." Painter discussed obtaining substance abuse counseling, mental health treatment, and parenting classes for respondent father, but was told that the prison did not offer these services until a prisoner was "closer to being released. And his release date, I believe, is in 2017." Respondent father was also able to send gifts to his children through the prison.
Painter testified that DHHS investigated potential placement with relatives of respondent father, but could not locate a suitable home. Respondent father requested that he be able to speak with his children via telephone. He also communicated with his children through letters and gifts. However, the children were "more or less indifferent[]" to receiving letters and gifts from respondent father. Painter testified that there was not much of a bond between the children and respondent father and that the children needed stability. EK stated that she did not want to start over in a new family and that she felt safe with her foster family. Painter testified that respondent father provided the names of several relatives for purposes of placement. However, following investigation, it was determined that none of the relatives were a viable option for placement.
On the second day of the hearing, evidence was admitted indicating that at one point, respondent father sent letters to respondent mother threatening to harm her if respondent father lost his parental rights. In addition, when speaking to Painter via telephone, respondent father made veiled threats directed toward respondent mother and Shawn. He told Painter that "[t]hose two know what would happen if . . . they had my children removed and they know what is going to happen if I do not get my children back when I get out of here."
At the end of the hearing, respondent father, who had been present by telephone, provided some brief testimony. Respondent father explained that he had regular contact with a relative, Miranda Blanchard, who had expressed interest in "gaining custody of the children . . . ." Respondent father asked that Blanchard be considered for adoption purposes. Respondent father also explained that he did not feel that he should be held responsible for respondent mother's conduct.
The trial court asked for information regarding respondent father's conviction and sentence. Respondent father explained that he had been in prison for murder since 2005, and would be released in November or December of 2017. He also explained that he had not assaulted a prison officer; the assault was committed by his cellmate, but both were charged. The charge had since been dismissed. Respondent father explained that when he was released, he intended to move to the Bay County area, where his family is located.
Following the introduction of evidence, the trial court rendered its decision from the bench. With regard to respondent father, the trial court acknowledged that he did not want to lose his parental rights, and that he had completed the services that were available to him in prison. However, the trial court also explained that "it was his own actions that have put him in a position where he has not been able to take his children and give them any care or comfort." The trial court noted that respondent father had been incarcerated for most of his children's lives, and that the children "really don't know him." The trial court explained that respondent father would not be released from prison for another 18 months, and that leaving the children with respondent mother while he was in prison had "proved to be a very poor decision . . . ."
The trial court then addressed the specific statutory bases at issue. With regard to MCL 712A.19b(3)(c)(i), the trial court explained that more than 182 days had passed since the initial dispositional order and "[n]othing has changed." With regard to respondent father, the trial court stated that his "own incarceration has put this in a position where nothing is going to change in the very near future. To delay another 18 months is . . . just not in the best interest of the kids." The trial court then moved to MCL 712A.19b(3)(h). After reciting the statutory text, the trial court explained that respondent father had "been in prison for the entire duration of the case, and he clearly has no ability to provide any care and comfort for these children. So there is clear and convincing evidence regarding that statutory ground." With regard to MCL 712A.19b(3)(j), the trial court stated that "of course, [respondent father is] incarcerated. So it is . . . not likely that anyone can provide a good, stable place for these children where they would not be harmed."
The trial court then moved to the best-interest determination. The trial court largely relied on the fact that the children were, quite literally, asking to be placed with adoptive parents. It also noted that there was a significant risk of harm if the children were returned to their prior home with respondent mother. The trial court explained that efforts to locate a relative placement had been unsuccessful. The trial court further explained that respondent father had "indicated to the [c]ourt last week that he was told there were a couple family members that had come forward, and that has not been the case. So, again, there are no relatives here, and it certainly is in the best interest of these children to provide them some permanency." The court entered orders terminating respondent father's parental rights. This appeal ensued.
The court also terminated respondent mother's parental rights; however, respondent mother did not appeal the order. --------
II. STATUTORY GROUNDS
Respondent father first contends that the trial court clearly erred when it found that statutory grounds for termination of his parental rights were established by clear and convincing evidence.
"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). This Court "review[s] for clear error . . . the court's decision that a ground for termination has been proven by clear and convincing evidence . . . ." In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if "the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been made." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (quotation marks and citation omitted).
The trial court terminated respondent father's parental rights in part pursuant to MCL 712A.19b(3)(h), which provides in pertinent part as follows:
The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, 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.
In finding grounds for termination under (3)(h), the trial court explained that respondent father had "been in prison for the entire duration of the case, and he clearly has no ability to provide any care and comfort for these children. So there is clear and convincing evidence regarding that statutory ground." Although the court did not articulate its findings with precision, a review of the record does not leave us with a definite and firm conviction that the trial court erred in finding grounds for termination under (3)(h). For purposes of (3)(h), our Supreme Court has looked to the date DHHS first seeks termination, as the "start date" for the two-year period. See In re Mason, 486 Mich at 162. Here, the petition seeking termination of respondent father's parental rights was filed on February 12, 2016. Respondent father testified that he expected to be released in November or December of 2017; however, there were no guarantees that respondent would receive an early release. Instead, it was possible that respondent would remain incarcerated until 2019, when his prison sentence expired. Thus there was evidence on the record to support the trial court's finding that under (3)(h) respondent father was imprisoned for such a time that the children would be deprived a normal home for a period exceeding two years.
In addition, the evidence supported that respondent father "has not provided for the child's proper care and custody, 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)(h). Here, respondent father had been incarcerated for nearly the duration of the children's entire life. He did not provide any care or custody of the children and he did not have a bond with the children. The children were at an age where they could and did express their desire for permanency and there was nothing in the record to support that, even if respondent father was released in November or December 2017, that he could establish himself in a manner that would allow him to provide proper care and custody of the children within a reasonable amount of time. Respondent father has been incarcerated for the past decade and the children required stability and long-term planning. The record evidence did not support that respondent could provide that stability or long-term planning for the children. Similarly, DHHS investigated respondent's relatives and determined that none of them were a viable option for placement. In short, the trial court did not clearly err in finding grounds for termination under MCL 172A.19b(3)(h). Because we have determined that there was at least one statutory ground for termination, we need not evaluate the other grounds for termination. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).
III. BEST INTERESTS
Respondent father also contends that the trial court erred when it found that termination of his parental rights was in the best interests of the children.
We review the trial court's determination that the termination of a person's parental rights was in the child's best interests for clear error. In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
"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). In determining a child's best interests, the trial court may consider the child's need for stability and permanency and whether the child is progressing in its current placement. In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011). In addition, the trial court may consider the children's bond to the parent, the parent's parenting ability, and the advantages of a foster home over the parent's home. In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).
In this case, the record established that CK and EK had little, if any, bond with respondent father, who had been incarcerated for all of EK's life and nearly all of CK's life. Due to his incarceration, respondent father has no present ability to care for his children, and he was unable to provide DHHS with any relative who was willing and able to care for the children in his absence. The foster home, where the children were thriving, was more advantageous to the children than what respondent father was capable of providing. The children needed stability, having been under the trial court's supervision for more than two years. The children themselves recognized this fact; they had suggested potential adoptive families for some time before respondent father's parental rights were terminated. Under these circumstances, the trial court did not clearly err when it concluded that termination of respondent father's parental rights was in the best interests of CK and EK. In re Trejo Minors, 462 Mich at 356-357.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher