Opinion
No. 349435
02-04-2020
In re A. P. MONTGOMERY, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court Family Division
LC No. 16-839348-NA Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ. PER CURIAM.
Respondent mother appeals as of right the trial court's order terminating her parental rights to her child, AM. Respondent does not challenge the court's finding that clear and convincing evidence established statutory grounds for termination. The sole issue on appeal is whether termination was in AM's best interests. For the reasons explained below, we affirm the trial court's termination order.
The trial court found statutory grounds for termination pursuant to under MCL 712A.19b(3)(c)(i) (more than 182 days have passed since original disposition, the conditions that led to the adjudication continue to exist, and parent unable to rectify conditions), (g) (parent, although financially able to do so, failed to provide proper care and custody and no reasonable expectation parent will be able to provide proper care and custody within a reasonable time), (i) (parent's rights to a sibling have been terminated due to serious and chronic neglect or abuse, and parent failed to rectify the conditions), and (j) (reasonable likelihood child will be harmed if returned to parent).
I. RELEVANT FACTS
AM first came into care in October 2017, when she was two days old. Her three older siblings were already in foster care. Respondent tested positive for marijuana and cocaine while pregnant with AM, had a history of domestic violence and remained in a relationship with the perpetrator, MJ, and lacked the appropriate supplies to care for AM. Respondent eventually pleaded to statutory grounds after a supplemental petition adding additional grounds for termination was filed.
Respondent's parental rights to the three older children were eventually terminated. --------
The court took testimony concerning the best interests of AM over three days, one in February 2019 and two in April 2019. After considering all of testimony and exhibits presented, and holding an additional review hearing so petitioner could report on AM's progress in her foster placement, the court ruled from the bench in May 2019. The court observed that AM had been in placement for most of her life, and that respondent's minimal parenting time, her substance abuse, and her ongoing relationship with MJ had affected respondent's bond with AM. The court also found that respondent was not in full compliance with her service plan, particularly as it pertained to issues of domestic violence and substance abuse. The court further found that, although respondent appeared to have a house and income, the house was virtually empty; she had done nothing to prepare a suitable place for AM to live. With regard to the advantages of the foster home, the court found that AM was thriving in foster care and that there was a strong possibility the foster parents would adopt her. Further, the court found that the foster parents could provide the permanency, stability, and finality that respondent had at no time over the course of this nearly two-year case demonstrated she could provide. Given the court's findings, it concluded that termination of respondent's parental rights was in AM's best interests.
II. ANALYSIS
On appeal, respondent mother argues that the trial court erred when it found that termination of her parental rights was in AM's best interests. We disagree.
This Court reviews for clear error a trial court's decision that the petitioner had proven by a preponderance of the evidence that termination of parental rights is in the child's best interests. In re Gonzales/Martinez, 310 Mich App 426, 430; 871 NW2d 868 (2015); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); MCR 3.977(K). 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 Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009) (quotation marks and citation omitted). "[R]egard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011); MCR 2.613(C).
If the family court finds that the petitioner established one or more grounds for termination of parental rights by clear and convincing evidence, the court must order termination of the parent's parental rights if it finds that termination is in the child's best interests. MCL 712A.19b(5); In re Beck, 488 Mich 6, 11; 793 NW2d 562 (2010). The petitioner bears the burden of proving that termination is in the child's best interests by a preponderance of the evidence. In re Moss, 301 Mich App at 90. In making a best-interests determination, the focus is on the child, not the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016).
In deciding a child's best interests, a court may consider the child's bond to his or her parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the suitability of alternative homes. In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). The family 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 well-being while in care, and the possibility of adoption. In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
Based on our review of the record, we cannot conclude that the trial court clearly erred in its decision to terminate respondent's parental rights. In re Gonzales/Martinez, 310 Mich App at 430; In re Moss, 301 Mich App at 90. With regard to the parent-child bond and respondent's parenting ability, foster-care worker Sarah Peoples testified that AM was comfortable around respondent, but she was bonded to the foster parents. Respondent had supervised parenting time once a week for two hours, and was consistent in attendance. Peoples testified that she observed most of respondent's parenting time visits and that respondent was generally appropriate with AM, although there were periodic concerns with the amount of time respondent spent on her cell phone during visits and she sometimes had to be encouraged to change AM's diaper. Respondent does not appear to have progressed to unsupervised parenting time.
The record supports the trial court's finding that respondent was only somewhat compliant with her case service plan. Although she completed substance abuse treatment, she continued to screen positive for cocaine and marijuana, and she missed the majority of her drug screens. Missed drug screens are presumed positives. Respondent had obtained housing, but her house was virtually empty at the time of the best interests hearing. She maintained employment for most of the proceeding involving AM, but respondent's own testimony at the best interests hearing indicates that she frequently changed jobs and was fired from at least three jobs for tardiness, absence, or alleged lying. In addition, respondent failed to comply with the counseling component of her case service plan, which called for intensive domestic violence and trauma therapy.
With regard to domestic violence, the record shows that respondent made little or no progress in eliminating the domestic violence that created a dangerous environment for AM. Respondent had a substantial history of domestic violence with MJ as both victim and perpetrator. Despite respondent's awareness that ending her contact with MJ was critical to reunification with AM, she continued to associate with him and to be untruthful to the court about her relationship with him, and she failed to complete court-ordered domestic violence therapy. Kathy Spatafora had performed two psychological evaluations of respondent and testified as an expert in abuse and neglect cases. She stated that respondent rationalized the domestic violence and made excuses for MJ, and that she lacked insight into the cycle of domestic violence, the danger it presented to herself and AM, and her need for treatment. Spatafora opined that respondent was unable to care for AM and that it would be safer for AM to not be returned to respondent's care.
The record also supports the trial court's finding regarding the advantages of the foster home in which AM had lived since she was eight weeks old. The foster parents lived in a five-bedroom home in a good school district, and could provide for AM's material needs. In addition, they were a close family and enjoyed a strong network of support through their church community. Further, they also were in the process of adopting a child only 10 months older than AM. The foster mother testified that AM and the older child were "inseparable." She also testified that she and her husband loved AM as their own and planned to adopt her if respondent's parental rights were terminated. Thus, the record shows that the foster parents were capable of providing for AM's physical, social, and psychological needs, she was thriving in their care, and they were willing to provide her with the permanency, stability, and finality she needed.
On appeal, respondent disputes the advantages of the foster home on several grounds. She first takes issue with the fact that the foster parents have a pet pig that they let into the house. However, there was no evidence that the foster family's pet potbelly pig, named Charlotte, was any less hygienic or more dangerous to AM than a family cat or dog. The foster mother testified that the pig is housebroken, and she does not let it in the house when the children are playing on the floor, or if she does, she keeps it in her bedroom.
Respondent also takes issue with the fact that the foster family is white and AM is black. She contends that the foster mother's testimony that the family associated with a diverse range of people, including black people in her family and church, and that AM would have "racial mirrors" is indicative that she is "clueless about racial and cultural issues." We disagree with respondent's characterization of the foster mother's testimony. It is apparent from the record that the foster mother's intent was to ensure the court that the foster family is aware there are often concerns when a white family adopts a black child and they plan to meet the child's needs. Even if respondent's concerns about cross-racial adoption were viable, which they are not, the remedy would not be to return AM to respondent's care, but to proceed with termination of respondent's parental rights and to find a new placement for AM.
Finally, respondent argues that AM's foster parents neglected her oral hygiene. This accusation is also unsupported by the record. While AM did have a black line around her gums, the record shows that the foster mother was getting her the dental care she needed, and the dentist opined that the black line was likely caused by in utero substance exposure.
Given the continuing risks to AM from respondent's inability to address her issues with domestic violence and substance abuse, the instabilities in her employment, and the insufficiencies in her housing, and considering AM's age and need for permanency, stability, and finality and the willingness of her foster family to meet these needs through adoption, we conclude that the trial court did not clearly err in finding that termination of respondent's parental rights was in AM's best interests.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens