Opinion
No. 333862
01-17-2017
In re K. MCFARLANE, Minor.
UNPUBLISHED Allegan Circuit Court Family Division
LC No. 13-052707-NA Before: MURPHY, P.J., and METER and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent appeals as of right an order terminating his parental rights to a minor child under MCL 712A.19b(3)(b)(i), (c)(i), (c)(ii), (g), (j), (k)(iii), (k)(iv), and (n)(ii). We affirm.
Respondent cared for the child during the night on December 6, 2013. On December 7, 2013, the child was brought to the hospital by her paternal grandmother after the child started seizing. Respondent was subsequently charged with first-degree child abuse, and he was prohibited from having any contact with the child. The trial court adjourned the termination hearing until after respondent's criminal trial. In April 2016, a jury convicted respondent of first-degree child abuse; on the verdict form, the jury specifically described the injury as "Abusive Head Trauma." Following a termination hearing in May 2016, the trial court terminated respondent's parental rights.
On appeal, respondent argues that petitioner, the Department of Health and Human Services (DHHS), failed to make reasonable efforts towards reunification. Because respondent did not argue before the trial court that the DHHS failed to make reasonable efforts, the claim of error is unpreserved. See King v Oakland Co Prosecutor, 303 Mich App 222, 239; 842 NW2d 403 (2013); In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). We review unpreserved claims of error for plain error affecting substantial rights. In re England, 314 Mich App 245, 263; 887 NW2d 10 (2016).
In general, when a child is removed, the DHHS must make reasonable efforts to rectify the conditions that caused the child's removal by adopting a case-service plan. In re Fried, Minor, 266 Mich App 535, 542; 702 NW2d 192 (2005). Except in cases involving certain aggravating circumstances, reasonable efforts must be made to reunify the child and the parent. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). The failure to provide services to the parent may result in insufficient evidence to terminate parental rights. See id. at 159-160, and In re Fried, Minor, 266 Mich App at 541. While the DHHS has a responsibility to make reasonable efforts to provide services for reunification, a parent has a commensurate responsibility to participate in the services that are offered. In re Frey, 297 Mich App at 248.
Respondent claims that the DHHS failed to provide reasonable efforts towards reunification because a caseworker allegedly deprived the child of a financial benefit in order to make it appear that respondent was not interested in providing for the child. The caseworker testified that after respondent asked her for the child's social security number so that he could get benefits from the Veterans Administration (VA) for the child, she called respondent to give him the number. In a voicemail message, the caseworker told respondent that she had the social security number, but she did not want to leave it in the message, and she asked respondent to call her back. She testified that respondent never returned the telephone call. In its opinion, the trial court stated that respondent failed to follow through with obtaining the child's social security number from the caseworker. We must defer to the trial court's determination that the caseworker's testimony that respondent never returned the telephone call was credible. See MCR 2.613(C) and In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011). Respondent cannot complain that the caseworker deprived the child of a financial benefit when he failed to take the next step, i.e., returning the caseworker's telephone call, to get the child's social security number. See, generally, In re Frey, 297 Mich App at 248.
Respondent makes three other arguments regarding reasonable efforts. First, respondent argues that the DHHS failed to make reasonable efforts because it took the position that respondent was not interested in the child's welfare because he did not ask for the child's medical records, even though the records were provided to his attorney. Second, respondent argues that the DHHS worked against reunification when it allegedly forced the mother of the child to separate from him. Third, respondent argues that the DHHS failed to facilitate giving out-of-court updates on the child to him and his parents. As stated, the DHHS must make reasonable efforts to rectify the conditions that caused the child's removal by adopting a case-service plan. In re Fried, Minor, 266 Mich App at 542; see also In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008) (stating that the DHHS must make reasonable efforts "to rectify conditions, to reunify families, and to avoid termination of parental rights"). The condition that caused the child's removal was physical abuse. The services offered to respondent included a psychological evaluation, parenting time, parenting classes, and an infant mental health program; he also received counseling through the VA, about which the DHHS received updates. Respondent's arguments simply do not demonstrate that the services the DHHS provided were inadequate to address the problem of child abuse or any barrier, such as respondent's emotional stability or parenting skills, that stood in the way of reunification. We find no clear error affecting substantial rights.
The transcript excerpt respondent cites for this assertion demonstrates nothing more than that respondent's father had been unable to reach the child's caregivers by way of telephone or Facebook. --------
Respondent also argues that the trial court erred in finding that termination of his parental rights was in the best interests of the child. We review for clear error a trial court's decision regarding the best interests of a child. In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015). A trial court's decision is clearly erroneous if, although there may be evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012).
"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 . . . ." MCL 712A.19b(5). That termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The focus of the best-interests inquiry is the child, not the parent. In re Payne/Pumphrey/Fortson, 311 Mich App at 63. A trial court should weigh all evidence available to it. Id. Factors that a court may consider are the child's bond to the parent; the parent's parenting ability and compliance with the case-service plan; the parent's visitation history with the child; the child's need for permanency, stability, and finality; the child's well-being while in care; the parent's history of domestic violence; and the advantages of a foster home over the parent's home. In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014).
We disagree with respondent's claim that, because the trial court did not take judicial notice of the expert testimony given at his criminal trial, there was no evidence to support the trial court's finding that respondent's abuse "was so severe" that the child "will forever bear the scars of th[e] abuse through serious impairment to her cognitive, motor, and speech development." Respondent was convicted of first-degree child abuse. A person commits first-degree child abuse "if the person knowingly or intentionally causes serious physical or serious mental harm to a child." MCL 750.136b(2). "Serious physical harm" is "any physical injury that seriously impairs the child's health or physical well-being, including, but not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut." MCL 750.136b(1)(f). It was elicited at the termination hearing that, at his criminal trial, respondent presented expert testimony that the injuries to the child's brain were caused by the stroke she suffered in utero, but the prosecution presented conflicting expert testimony. Respondent acknowledged that the jury, after hearing all the expert testimony, convicted him. The jury found that the serious physical harm suffered by the child was abusive head trauma. A caseworker testified that the child had severe delays and that she will always need intensive services. The child began therapy soon after she was removed. In therapy, the child was fitted with braces and given walkers to help her gain strength and mobility. The mother of the child testified that the child currently attended five hours of therapy each week. The child participated in physical therapy, occupational therapy, aquatic therapy, speech therapy, and developmental therapy. Based on this evidence, we are not left with a definite and firm conviction that the trial court made a mistake in finding that respondent's abuse of the child was severe and that the child will bear the scars of the abuse through serious impairment of her development.
The trial court did not clearly err in finding that termination of respondent's parental rights was in the child's best interests. In re Payne/Pumphrey/Fortson, 311 Mich App at 63. Evidence supported the trial court's finding that the child had no bond with respondent. The child, who was 2½ years old, had not seen respondent in two years. The therapist who had worked with the child testified that, because of this length of time, the child would respond to respondent in the same way that she would respond to a stranger. The trial court's findings that it was doubtful that respondent had the ability to parent the child and that the child was at risk of future abuse at respondent's hands were also supported by evidence. Respondent was convicted of first-degree child abuse, but he refused to acknowledge that he was the cause of any injuries to the child. Respondent also had a history of violence; when a man tried to become involved in a disagreement between respondent and the child's mother outside of a friend's apartment, respondent stabbed the man. Respondent had not taken any classes regarding how to parent a child with special needs. Respondent also did not take his medications for anxiety and depression as prescribed. Additionally, the trial court's finding that the child was in a home that offered her stability and allowed her to fully benefit from her therapy was supported by the evidence. The child's mother, along with the child and the child's sister, who had established a strong sibling bond, lived with the child's maternal grandparents. The child's mother attended the child's therapy sessions, and she did therapy with the child at home. The grandparents also helped with the child's therapy. We are not left with a definite and firm conviction that the trial court made a mistake in finding that termination of the parental rights of respondent, the man who abused and caused severe physical harm to the child, but refused to accept any responsibility for the child's injuries, was in the best interests of the child. In re Olive/Metts Minors, 297 Mich App at 41.
The trial court made no mention of respondent's testimony that the child would not be able to receive any benefits from the VA if his parental rights were terminated. The trial court's failure to consider this consequence of termination did not render its best-interests finding clearly erroneous. Respondent never obtained any additional benefits from the VA for the child. Despite this, the child was receiving numerous forms of therapy, allowing her to progress in her development. The child's mother also testified that she was able to provide the child with all the food and clothing that the child needed. She stated that "money has been tight, but . . . [w]e have more than everything we need." We affirm the trial court's best-interests determination.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
/s/ Amy Ronayne Krause