Opinion
No. 344087
03-19-2019
In re LEWIS/WARD, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court Family Division
LC No. 15-132467-NA Before: O'BRIEN, P.J., and JANSEN and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent-mother appeals by right the trial court's order terminating her parental rights to her three minor children, ML1, ML2, and AW, pursuant to MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), MCL 712A.19b(3)(c)(ii) (failure to rectify other conditions), MCL 712A.19b(3)(g) (failure to provide proper care and custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm if returned to parent). We affirm.
This case did not involve the minor child NM and respondent-mother's parental rights to NM are not the subject of this appeal.
I. RELEVANT FACTUAL BACKGROUND
In August 2015, the Department of Health and Human Services (the DHHS) filed a petition seeking removal of ML1, ML2, and AW from respondent-mother's care. The DHHS's petition stemmed from allegations that respondent-mother's youngest child, AW, tested positive for THC at birth, and from an incident where ML2 suffered severe injury after consuming a large quantity of liquid Tylenol. In September 2015, respondent-mother admitted to the trial court's jurisdiction over the children and conceded that she had improperly supervised the children when ML2 consumed liquid Tylenol. The trial court ordered respondent-mother to undergo a substance abuse assessment and random drug screens, to complete parenting and anger management classes, to participate in parenting time and to work with an infant mental health specialist, and to obtain and maintain employment and suitable housing.
Respondent-mother participated in a number of services provided through DHHS. She completed anger management and parenting classes and participated in parenting time and infant mental health classes. However, she continued to test positive for marijuana during random drug screens. In July 2016, respondent-mother was hospitalized following an outburst at a parenting time visit. During this hospitalization, respondent-mother was diagnosed with bipolar disorder, but refused medication. Respondent-mother was briefly incarcerated in October 2016, which caused her to miss a number of appointments.
Following a period of negative drug screens in January 2017 and her continued participation in parenting time, parenting classes, and infant mental health classes, respondent-mother was able to have the children during unsupervised overnight visits. During this time, the two older children, ML1 and ML2, were placed with their father, while AW remained in a foster care placement. After respondent-mother completed three consecutive negative drugs screens, the DHHS returned ML1 and ML2 to her in October 2017, and she was able to have AW for unsupervised overnight visits.
In January 2018, the DHHS moved to again remove the children from respondent-mother's care. The DHHS alleged that there was an incident of domestic violence at respondent-mother's home while the children were present. At approximately 3:00 a.m., respondent-mother's brother and her cousin got into a fight and broke a glass table. Her brother was hospitalized and her cousin was arrested following the incident. Additionally, ML1 was so afraid during the fight that he urinated on himself. During that period, respondent-mother's electricity was shut off and she received an eviction notice. The DHHS filed a petition to terminate respondent-mother's parental rights in February 2018. Following evidentiary hearings in April 2018, the trial court entered an order terminating respondent-mother's parental rights to the three children. This appeal followed.
II. STANDARD OF REVIEW
"We review for clear error both the court's decision that a ground for termination has been proven by clear and convincing evidence and, where appropriate, the court's decision regarding the child's best interest under MCL 712A.19b(5)." In re Olive/Metts Minors, 297 Mich App. 35, 40; 823 NW2d 144 (2012) (quotation marks and citation omitted). "A trial court's decision 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." Id. at 40-41.
III. STATUTORY GROUNDS
Respondent-mother argues that the trial court clearly erred by finding that there was clear and convincing evidence to establish the grounds for termination. We disagree.
The trial court may terminate a parent's parental rights if it finds by clear and convincing evidence that one or more of the statutory grounds for termination have been met. MCL 712A.19b(3). "Only one statutory ground for termination need be established." In re Olive/Metts Minors, 297 Mich App at 41. The trial court terminated respondent-mother's parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which, at the time of the termination of respondent-mother's rights, provided:
MCL 712A.19b(3)(g) was substantively amended after the termination of respondent-mother's rights. See 2018 PA 58, effective June 12, 2018. --------
(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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, 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.
With respect to MCL 712A.19b(3)(c)(i) and (ii), the trial court did not clearly err by finding that the conditions that led to the adjudication, and other conditions, continued to exist; that respondent-mother had been given recommendations to rectify the other conditions and a reasonable opportunity to do so; and that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the children's ages.
At the time of the termination proceedings, the children had been in DHHS custody for over two and a half years. Accordingly, it is undisputed that more than 182 days elapsed from the initial dispositional order. See MCL 712A.19b(3)(c). The primary concerns that originally led DHHS to remove the children were the presence of THC in AW's system when he was born and ML2's severe injuries after ingesting liquid Tylenol, allegedly while respondent-mother was sleeping due to marijuana use. The trial court found that respondent-mother's marijuana use had "been an ongoing problem." She contended that she used marijuana to "deal with stress" and if she stopped using it, she would "hurt someone." While respondent-mother had submitted recent negative drug screens at the time of the termination proceedings, she did not participate in services to address her marijuana use or attempt to obtain a medical marijuana card.
The trial court also found that respondent-mother's ability to find and maintain suitable housing was a concern throughout the proceedings. Respondent-mother's electricity was shut off and she was evicted near the time when DHHS removed the children from her care the second time. Respondent-mother contended that she rectified the housing issues because she was living with her brother and he planned to help her find a home, but we are not convinced that the trial court clearly erred when it found that respondent-mother's lack of adequate housing was a consistent pattern that was not rectified. Additionally, although respondent-mother completed and participated in a number of services during the pendency of this case, the trial court found that she was not "able to consistently take these services and apply them." Respondent-mother was diagnosed with bipolar disorder following her hospitalization in July 2016 and a doctor recommended medication. At a family team meeting in March 2017, it was recommended very strongly that she take psychiatric medication, but she refused. Respondent-mother's refusal to take medication for her bipolar disorder was a "significant concern" for the trial court, and it was "not convinced that these conditions [had] been rectified." The trial court did not clearly err in concluding that clear and convincing evidence supported termination of respondent-mother's parental rights under MCL 712A.19b(3)(c)(i) and (ii).
Clear and convincing evidence also supported the trial court's findings under MCL 712A.19b(3)(g) that respondent-mother failed to provide proper care and custody for the children and that there was no reasonable expectation that she would be able to provide proper care and custody within a reasonable time considering the children's age. "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 701, 710; 846 NW2d 61 (2014). As discussed earlier, respondent-mother completed parenting, anger management, and infant mental health classes and consistently participated in parenting time. However, caseworkers repeatedly expressed concerns regarding respondent-mother's inappropriate disciplinary techniques, profanity being used in front of the children, unresponsiveness to the children, and emotional instability. Respondent-mother also took part in a family reunification program after the older children returned to her care, but the program administrators felt "that she had not . . . benefited from those services, that her level of engagement fluctuated, and she was observed to require prompts from the team to remain focused during visits."
Further, as previously discussed, respondent-mother struggled to maintain suitable housing throughout this case and did not adequately address her mental health issues. She continued to use marijuana with only brief, intermittent periods of sobriety. The trial court was "satisfied that certainly there [was] a concern of her being able to provide consistent proper care and custody of these children," and it was "not satisfied it would be rectified considering their young age." We conclude that termination under MCL 712A.19b(3)(g) was supported by clear and convincing evidence.
Finally, under MCL 712A.19b(3)(j), there was clear and convincing evidence of a reasonable likelihood of harm to the children if they were returned to respondent-mother. The older children were again removed from respondent-mother's care following an incident of domestic violence in her home involving two male relatives. Respondent-mother was unwilling to take part in a safety plan to at least have one of the men out of the house, and she stated that if her cousin had not knocked her brother out, she would have. She also declined to go to a shelter to remove herself and her children from the volatile living situation. Respondent-mother admitted that her children had "chronically witnessed violence in the home before" and indicated that it was normal. Accordingly, the trial court did not err when it found that the children were at risk of harm if they were returned to respondent-mother's care. See MCL 712A.19b(3)(j).
IV. BEST INTERESTS
Respondent-mother also argues that the trial court erred by finding that it was in the children's best interests to terminate her parental rights. Again, we disagree.
After the trial court finds that the petitioner has established at least one statutory ground for termination, it may not terminate a parent's parental rights unless it finds that termination is in the children's best interests. MCL 712A.19b(5); MCR 3.977 (E)(4). The trial court must find that termination is in the children's best interests by a preponderance of the evidence. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). If the trial court finds both that there is a statutory ground for termination and that termination is in the children's best interests, "the [trial] 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).
A trial court may rely on the whole record when making a best-interests determination. In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000). "In deciding whether termination is in the child's best interests, the [trial] 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). In addition, the trial court may "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 well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 714. Further, "the trial court has a duty to decide the best interests of each child individually." In re Olive/Metts Minors, 297 Mich App at 42.
Respondent-mother's psychological assessment stated that she exhibited a "level of defensiveness, projection, blame, [and] rationalization." Regarding the incident where ML2 consumed liquid Tylenol, respondent-mother asserted that someone else was supposed to be watching him, that it wasn't her fault, and that she was "not sure why they took him away from" her. The trial court found that "[t]his level of blame [was] significant and . . . [showed respondent-mother's] complete lack of understanding for how her behaviors contributed to the involvement of Children's Protective Services." In addition, the trial court was concerned about respondent-mother's judgment following the incident of domestic violence involving her brother and her cousin, and it concluded that she lacked maturity and judgment.
According to AW's November 2017 trauma assessment, he had difficulty connecting with respondent-mother and engaging with her during parenting time. He resisted attending parenting time and would scream, cry, punch, and kick in order to avoid going to the visits. During parenting time, he was quiet and withdrawn, and following the visits, "the sparkle in [AW's] eyes [was] gone." He also struggled to adjust to his foster care placement following parenting time with respondent-mother, and he had "episodes of aggression, including yelling and hitting, as well as saying volatile language." In addition, he had "developed a secure attachment to his current foster parent." If AW were to be removed, "he would need to have coping skills and so forth."
Further, in reaching its best-interests determination, the trial court noted that ML1 and ML2 were placed with their father, who appeared "to have support from his own mother." The trial court found that there were "continuing issues as to [respondent-mother], related to stable housing, transportation, income and mental health issues. [Respondent-mother] ha[d] not benefitted from services provided. This matter ha[d] been pending since August of 2015. Each of these children [needed] permanency and stability."
It is clear that the trial court considered the whole record, including respondent-mother's psychological evaluation and AW's trauma assessment, in making its best-interests determination. The trial court considered AW's bond with respondent-mother and her parenting ability, including her refusal to accept responsibility for instances that led to or could have resulted in harm to the children. It considered the instance of domestic violence that caused DHHS to remove the children the second time, respondent-mother's history of domestic violence, and her failure to benefit from services. The trial court also examined AW's behavior and well-being and his bond with his foster parents. It emphasized that this case was pending for over two years and that all the children needed permanency and stability. Accordingly, given these factors, the trial court did not clearly err by finding by a preponderance of evidence that it was in the children's best interests to terminate respondent-mother's parental rights.
V. CONCLUSION
The trial court did not clearly err in concluding that there was clear and convincing evidence to establish grounds for termination under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), and that a preponderance of the evidence demonstrated that it was in the children's best interests to terminate respondent-mother's parental rights.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause