Opinion
No. 336831
10-12-2017
In re LENNOX/BUTERAKOS/LEAMAN, Minors.
UNPUBLISHED Clare Circuit Court Family Division
LC No. 15-000074-NA Before: TALBOT, C.J., and O'CONNELL and O'BRIEN, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the four minor children, EL, SB, HB, and ML, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if child returned to parent's care). We affirm.
On appeal, respondent does not challenge that at least one statutory ground under MCL 712A.19b(3) was established. She only argues that the trial court erred by finding that termination was in the children's best interests. We disagree. The trial court's determination of the children's best interests must be supported by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). Appellate courts review for clear error the court's decision regarding the children's best interests. In re Johnson, 305 Mich App 328, 335; 852 NW2d 224 (2014). "A finding is 'clearly erroneous' [if] although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009) (citation and quotation marks omitted; alteration in original).
"[T]he focus at the best-interest stage" is "on the child, not the parent." In re Moss, 301 Mich App 76, 87; 836 NW2d 182 (2013) The trial court should weigh all the evidence available to it in determining the child's best interests, In re Trejo, 462 Mich 341, 3564; 612 NW2d 407 (2000), superseded by statute on other grounds as recognized in In re Moss, 301 Mich App at 83, and may consider such factors as "the child's bond to the parent, the parent's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, 297 Mich App at 41-42 (internal citations omitted). Other considerations include "the children's well-being while in [the parent's] care . . . and the possibility of adoption." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
When this case began, respondent's treatment plan was predominately focused on addressing her drug addiction. As part of her plan, respondent was required to participate in substance abuse counseling, submit to random drug screens, undergo substance abuse and psychological evaluations, attend parenting classes, and seek employment. Approximately nine months into this case, respondent's substance abuse problem persisted, and maintaining appropriate housing became an issue. As a result, petitioner requested that EL, SB, and HB be placed with their father, who lived in Kansas. Over respondent's objection, the trial court approved the transfer, and EL, SB, and HB subsequently moved to Kansas and were placed in their father's care. ML, who had a different father than his siblings, continued in his foster placement. Approximately 16 months after the initial petition was filed, the trial court held a termination trial. The evidence at trial showed that respondent eventually obtained appropriate housing, but she continued to not engage in substance abuse counseling, refused numerous drug screens and the few that she submitted tested positive, did not secure verifiable employment that would allow her to support four children, and failed to benefit from a parenting class. The evidence also showed that, roughly one month before the termination trial, respondent started treatment at a methadone clinic. However, during that treatment, respondent continued to use marijuana for which she did not have a medical marijuana card.
When the trial court delivered its best-interest analysis as part of its oral opinion terminating respondent's parental rights, the trial court repeatedly emphasized that it believed respondent loved her children and that they loved her. However, it expressed grave concerns over respondent's decision to repeatedly choose using illicit substances over having her children returned. It found that so long as mother refused to adequately treat her "severe substance abuse" problem, any child in mother's care would be at risk of harm. The trial court also noted that, even with the aid of a parenting class, respondent was unable to effectively parent all of her children at the same time. The trial court emphasized that respondent "struggled to the point that kids were leaving the parenting time session and she wasn't even aware of it." With respect to EL, SB, and HB, the trial court noted that they had been doing very well in their father's care and that there had been no problems during the six months of that placement. With regard to ML, the trial court found that he needed consistency, "continuity, and safety," which respondent could not provide. The trial court also noted that there was a high likelihood of adoption. Based on the foregoing, we are not definitely and firmly convinced that the trial court made a mistake in finding by a preponderance of the evidence that termination was in all four children's best interests. In re Rood, 483 Mich at 90; In re Moss, 301 Mich App at 90.
On appeal, respondent argues that the trial court ignored testimony regarding respondent's bond with her children during its best-interest analysis. However, we conclude that the record does not support this assertion because the trial court clearly considered respondent's bond with her children when it discussed their love for one another. --------
We also reject respondent's argument that petitioner impermissibly created the condition that led to the termination of her parental rights when it authorized the transfer of EL, SB, and HB to their father's custody in Kansas. The natural parents of a child have a fundamental liberty interest in the care and custody of the child, and the state must prove by clear and convincing evidence at least one statutory ground before terminating an individual's parental rights. In re B & J, 279 Mich App 12, 18; 756 NW2d 234 (2008). The state may not, however, create the conditions that will essentially assure the termination of a person's parental rights. Id. at 19-20. The circumstances of this case did not create the conditions that led to the termination of respondent's parental rights, and, contrary to respondent's assertions on appeal, the facts of this case are clearly distinguishable from those in In re B & J. In In re B & J, the petitioner became actively involved in having the children's parents, who were undocumented immigrants, deported and then sought to terminate parental rights under MCL 712A.19b(3)(g) because the parents, having been deported, were necessarily unable to provide proper care and custody for the children. Id. at 16-17. In the instant case, petitioner removed the children from respondent's custody, but, to facilitate their return, it offered her numerous services of which she did not take advantage. Although petitioner eventually authorized the transfer of EL, SB, and HB to their father's custody in Kansas, it did so only after the children had been out of respondent's custody for a significant period of time and respondent had failed to make any progress on her treatment plan. Further, the trial court did not terminate respondent's parental rights simply because the children had moved to Kansas. Rather, the trial court found clear and convincing evidence of other factors to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i), (g), and (j), largely related to respondent's failure to address her substance abuse issue and take advantage of the services that petitioner offered. Respondent's actions, not petitioner's, led to the termination of her parental rights.
Affirmed.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Colleen A. O'Brien