Opinion
No. 344409
02-19-2019
In re LOCKETT, Minors.
ORDER
Christopher M. Murray Presiding Judge Cynthia Diane Stephens Michael J. Riordan Judges
The Court orders that the February 12, 2019 opinion is hereby VACATED, and a new opinion is attached.
/s/ Christopher M. Murray
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
February 19, 2019
Date
/s/_________
Chief Clerk If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED St. Clair Circuit Court Family Division
LC No. 17-000151-NA Before: MURRAY, C.J., and STEPHENS and RIORDAN, JJ. PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to her minor children, LL and AL, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.
MCL 712A.19b(3)(g) was amended, effective June 12, 2018. See 2018 PA 58. Under the prior version of the statute, a court could terminate parental rights if "[t]he parent, without regard to intent, fails to provide proper care or custody for the child . . . ." See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quoting the prior version of MCL 712A.19b(3)(g)). Under the new version of the statute, termination is warranted if "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child . . . ." MCL 712A.19b(3)(g), as amended by 2018 PA 58. --------
I. STATUTORY BASES
Respondent argues that the trial court erred in finding statutory grounds for termination of her parental rights. We disagree.
"This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination. The trial court's factual findings are clearly erroneous if the evidence supports them, but [this Court is] definitely and firmly convinced that it made a mistake." In re White, 303 Mich App 701, 709-710; 846 NW2d 61 (2014).
"A court may terminate a respondent's parental rights if one or more of the statutory grounds for termination listed in MCL 712A.19b(3) have been proven by clear and convincing evidence." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012).
The trial court did not err by terminating respondent's parental rights under MCL 712A.19b(3)(c)(i). MCL 712A.19b(3)(c)(i) provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .
* * *
(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 . . .
(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. [MCL 712A.19b(3)(c)(i); In re White, 303 Mich App at 710.]
The trial court properly found that clear and convincing evidence supported the termination of respondent's parental rights under MCL 712A.19b(3)(c)(i). More than 182 days had passed between the issuance of an initial dispositional order on June 14, 2017, and the date of the termination hearing on June 6, 2018.
Additionally, the conditions that led to the adjudication continued to exist. Respondent had a previous child removed in 2005, and her parental rights as to that child terminated in 2007. Then, LL and AL were removed in 2013 because of respondent's cocaine abuse, and returned to her in 2015. In that termination case, respondent was provided services. The children were removed again in 2017 because respondent tested positive for cocaine on March 2, 2017, and welts were observed on AL's buttocks. In this case, respondent was also provided services. She was involved in at least four different rehabilitation programs and ordered to attend parenting education classes. The court's recap of her positive test results showed that respondent consistently used cocaine throughout the entire case. Respondent further failed to attend any parenting classes and continued to exhibit untreated anger issues when she threw items off a bookshelf during one of her parenting time visits. Clearly, respondent had not rectified the primary conditions that led to the removal of LL and AL. Given respondent's history of returning to drug use and little benefit from services in this case, there is no reasonable likelihood that the conditions that led to adjudication would be rectified within a reasonable time considering the children's ages. Therefore, the trial court did not err in concluding that clear and convincing evidence supported the termination of respondent's parental rights under MCL 712A.19b(3)(c)(i). Only one statutory ground needs to be established to terminate respondent's parental rights, In re Trejo Minors, 462 Mich 341, 360; 612 NW2d 407 (2000), however, clear and convincing evidence existed to support the court's termination on two additional grounds.
The trial court also did not err by terminating respondent's parental rights under MCL 712.19b(3)(g). MCL 712.19b(3)(g), which at the time of the termination order provided:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .
* * *
(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. [MCL 712A.19b(3)(g); In re White, 303 Mich App at 710.]
The trial court properly found that clear and convincing evidence supported the termination of respondent's parental rights under MCL 712A.19b(3)(g). "[A] parent's failure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003). Respondent's treatment plan required respondent to obtain safe and suitable housing, a legal source of income, to follow the recommendations from a psychological evaluation and substance abuse evaluation, attend parenting education courses, and visit with the children. There was evidence that respondent obtained some housing during the case, but she refused to allow anyone into the home to determine whether it was safe and suitable for the children. Respondent provided SSI documentation shortly before the termination hearing. Respondent did not follow the recommendations from her psychological and substance abuse evaluations. Respondent failed to follow through with referrals to attend counseling and attend programs to treat her mental health conditions. She failed to take her medication. She consistently tested positive for cocaine. Respondent failed to attend parenting education courses and only attended 33 of the approximately 80 parenting times available to her. Absent compliance with the case service plan and demonstrated benefit from services, it was unlikely that respondent would be able to provide proper care and custody within a reasonable time considering the children's ages. Therefore, the trial court did not err in concluding that clear and convincing evidence supported the termination of respondent's parental rights under MCL 712A.19b(3)(g).
Finally, the trial court did not err by terminating respondent's parental rights under MCL 712.19b(3)(j). MCL 712.19b(3)(j) provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .
* * *
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. [MCL 712A.19b(3)(j); In re White, 303 Mich App at 710.]
The trial court properly found that clear and convincing evidence supported the termination of respondent's parental rights under MCL 712A.19b(3)(j). Respondent's untreated cocaine abuse, anger and mental health issues created the reasonable likelihood that the children would be harmed if returned to her home. Respondent's cocaine use led to her children being removed twice and in this case there was little evidence demonstrating that the circumstances would not repeat themselves if the children had been returned. Respondent further failed to avail herself of resources provided to treat her mental health issues. Respondent left untreated her diagnoses of bipolar disorder, major recurrent depression, generalized anxiety disorder, cocaine dependence, and antisocial personality disorder. Miranda Grant, who conducted respondent's substance abuse and psychological assessments, stated that respondent parenting her children without substance abuse and mental health treatment would be a danger to the children. It was further concerning that respondent was unaware of all of the children's diagnoses and special needs and gave preferential treatment to only wanting to visit with LL, and not AL on one occasion. On this record, the trial court did not err in concluding that clear and convincing evidence supported the termination of respondent's parental rights under MCL 712A.19b(3)(j).
II. BEST INTERESTS
Contrary to respondent's claim, the trial court did not also err by finding that the termination of respondent's parental rights was in the children's best interests.
The trial court must order termination of parental rights if it finds that a statutory basis for termination has been established by clear and convincing evidence, "and it finds from a preponderance of the evidence on the whole record that termination is in the children's best interests. [This Court] review[s] for clear error the trial court's determination regarding the children's best interests." In re White, 303 Mich App at 713.
The trial court may consider a number of factors when determining whether termination of a respondent's parental rights is in the child's best interests, including:
"[T]he 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." 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 wellbeing while in care, and the possibility of adoption. [In re White, 303 Mich App at 713-714, quoting In re Olive/Metts, 297 Mich App at 41-42.]
In determining whether the termination of respondent's parental rights was in the best interests of the children, the trial court's analysis focused primarily on respondent's cocaine abuse and mental health issues:
In addressing all of those [best interest factors] I already talked about the assessment that indicated that an untreated mental health and substance abuse problem mother presented would create a dangerous situation for the children. She has not addressed either one of those issues. They still continue to exist. Placing the children back in her care would be detrimental to their safety. She had eighty some [sic] opportunities to attend parenting time with these children, only attended thirty-three, cut some short. She has not-that demonstrates that there's not really that great a bond between her and her children. The-she has had cocaine issues. The children were removed for a period of time in 2013 and re-removed in 2017 for the same issues. The children have been subject to that type of trauma on at least two occasions. And, there's no reason to believe that mother
will have her conditions under control. These children, therefore, will be in care for a considerable period of time without the ability to achieve permanency.
The trial court's findings properly supported the determination that the termination of respondent's parental rights was in the children's best interests. As demonstrated, respondent's compliance with her treatment plan was poor. Respondent had not successfully treated her cocaine abuse, anger, and mental health issues. All of these issues impair her ability to parent. Additionally, respondent's participation in visitation illustrates a minimal effort to maintain her bond with the children, especially AL. Buffy Loss, the program director from the Ennis Center for Children, indicated that respondent only made partial progress with her parenting time, no progress in overcoming her substance abuse issue, and poor progress in other areas. The children's need for permanency, stability, and finality, in this instance cannot be supplied by respondent.
Overall, numerous services were provided to respondent to help reunite her with her children; however, respondent has shown that she is not motivated to make the necessary changes to address those issues. Accordingly, the trial court did not err in finding that the termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan