Opinion
367549 367552
05-30-2024
In re MONTGOMERY, Minors. In re MONTGOMERY/ BROCK, Minors.
UNPUBLISHED
Wayne Circuit Court Family Division LC No. 2020-000213-NA
Before: MALDONADO, P.J., and PATEL and N. P. HOOD, JJ.
PER CURIAM.
In Docket No. 367549, respondent-father appeals by right the trial court's order terminating his parental rights to AFM, MJM, and ZAM. In Docket No. 367552, respondent-mother appeals by right the trial court's order terminating her parental rights to AFM, MJM, ZAM, and PLB.Regarding AFM, MJM, and ZAM, both respondents' parental rights were terminated pursuant to MCL 712A.19b(3)(c)(i) (the conditions leading to the adjudication continue to exist), and (j) (reasonable likelihood children will be harmed). Respondent-mother's parental rights to PLB were terminated pursuant to MCL 712A.19b(3)(j). We affirm.
The appeals were consolidated "to advance the efficient administration of the appellate process." In re Montgomery/Montgomery-Brock, Minors, unpublished order of the Court of Appeals, entered September 6, 2023 (Docket Nos. 367549; 367552).
I. BACKGROUND
MJM and MTM, twin brothers born in September 2019, were diagnosed with "failure to thrive" a month following their birth. This is a condition in which an infant's rate of weight gain is far below that of similarly-aged children. Their pediatrician instructed respondents to feed them every three hours, including at night. Respondent-mother failed to adhere to this guidance, and she watered down the babies' formula. Respondent-father, meanwhile, left the feeding to respondent-mother and did not know when the children were fed. In November 2019, MTM died. He had been found unresponsive and was rushed to the hospital, but it was too late. It was determined that the cause of death was malnourishment and the manner of death was homicide due to neglect. MJM was also severely malnourished and would have died had he not received prompt medical care.
The Department of Health and Human Services (DHHS) received a referral and Child Protective Services (CPS) became involved in the case. CPS observed AFM and MJM in the home. MJM appeared small and sickly and required immediate medical attention because he was malnourished and stopped breathing on several occasions. Petitioner filed with the trial court a request to authorize its petition seeking removal of AFM and MJM and seeking termination at the initial disposition. At the adjudication, respondents pleaded no contest to the allegations establishing the statutory grounds for the trial court to assume jurisdiction over AFM and MJM. The respondents also pleaded no contest to the statutory grounds for termination of their parental rights, but the trial court found it was not in AFM's and MJM's best interests to terminate respondents' parental rights. Instead, it authorized the petition, placed AFM and MJM in DHHS's custody, and ordered a parenting plan be put into place. The children were originally in relative placements but later moved to nonrelative foster homes.
Multiple years elapsed between the adjudication and the termination, and two more children were born during the case's pendency. Respondent-mother gave birth to ZAM in January 2021, and respondent-father was likewise the father of ZAM. Because AFM and MJM were in DHHS's care and because respondents had not completed their treatment plan, DHHS filed a petition requesting the trial court take jurisdiction over ZAM and place her in foster care. The trial court authorized the petition and placed ZAM in DHHS's care after respondents pleaded no contest to the allegations in the petition establishing statutory grounds for the trial court to exercise jurisdiction over ZAM. ZAM likewise began in a relative placement and was later moved to foster care. In January 2023, respondent-mother gave birth to PLB, who had a different father than the other children. PLB was initially placed with her father, but she was later removed and placed in foster care because her father was not providing proper care and supervision.
Respondents showed minimal compliance with their service plans. Although they completed parenting classes and some therapy, they lacked suitable and stable housing and did not verify legal sources of income. Respondent-mother has a developmental disability, and DHHS requested she participate in the Neighborhood Service Organization (NSO) program for individuals with such disabilities. On multiple occasions the process was initiated for respondentmother to engage with NSO, but she did not participate. Respondent-father frequently missed court appearances. In January 2023, DHHS filed supplemental petitions to terminate respondents' parental rights to AFM, MJM, and ZAM. At the termination hearing, DHHS caseworkers testified that respondent-mother did not engage in services and did not consistently participate in parenting time. Respondent-father's whereabouts were unknown. Because respondents did not participate in their services or demonstrate benefit from them, the trial court found clear and convincing evidence to establish the statutory grounds to terminate respondents' parental rights to AFM, MJM, and ZAM, and respondent-mother's parental rights to PLB.
The proceedings were bifurcated, and a best interests hearing was conducted in July 2023. Respondent-father did not attend his clinic evaluation for the best-interests determination and did not attend the best interests hearing. The trial court found it was in AFM's, MJM's, and ZAM's best interests to terminate respondents' parental rights and in PLB's best interest to terminate respondent-mother's parental rights. This appeal followed.
II. DOCKET NO. 367552
A. STATUTORY GROUNDS
Respondent-father argues the trial court clearly erred by finding statutory grounds to terminate his parental rights. We disagree.
This Court reviews "for clear error the trial court's finding that there are statutory grounds for termination of a respondent's parental rights." In re Atchley, 341 Mich.App. 332, 343; 990 N.W.2d 685 (2022). "A finding . . . is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed ...." In re MOTA, 334 Mich.App. 300, 320; 964 N.W.2d 881 (2020) (quotation marks and citation omitted; alterations in original). "When applying the clear-error standard in parental termination cases, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id. (quotation marks and citation omitted).
"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Pederson, 331 Mich.App. 445, 472; 951 N.W.2d 704 (2020) (quotation marks and citation omitted). Importantly, the clear and convincing evidence standard is "the most demanding standard applied in civil cases[.]" Id. (alteration in original; quotation marks and citation omitted).
At the termination hearing, the trial court, in rendering its termination decision under MCL 712A.19b, may take into consideration any evidence that had been properly introduced and admitted at the adjudication trial, MCR 3.997(E), along with any additional relevant and material evidence that is received by the court at the termination hearing, MCR 3.997(H). [In re MOTA, 334 Mich.App. at 316.]MCL 712A.19b(3)(c)(i) provides that a court may terminate parental rights if it finds by clear and convincing evidence that "182 or more days have elapsed since the issuance of an initial dispositional order" and "[t]he 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." It is undisputed that far more than 182 days elapsed following the initial disposition. Termination pursuant to subsection (c)(i) is appropriate when "the totality of the evidence" supports a finding that the parent "had not accomplished any meaningful change in the conditions" that led to adjudication. In re Williams, 286 Mich.App. 253, 272; 779 N.W.2d 286 (2009). Additionally, the court must find that "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). The determination of what constitutes a reasonable time includes both how long the parent will take to improve the conditions and how long the child can wait for the improvements to occur. In re Dahms, 187 Mich.App. 644, 648; 468 N.W.2d 315 (1991).
Respondent-father's inability to properly care for AFM, MJM, and ZAM led to the adjudication. This case began when MTM, MJM's infant twin brother, died of malnourishment. The evidence suggested that MTM simply had not been fed, and MTM's caretakers did not take any action when MTM's condition deteriorated. The evidence suggests that MJM would have died very soon had he not received life-saving care when he did. MJM appeared small and sickly when CPS made contact after MTM's death. He was pale and appeared malnourished. His bones were prominent and his eyes protruding, required immediate medical attention, and was rushed to the hospital at the request of CPS. These issues regarding neglect were not resolved during these lengthy proceedings. MTM's death is critically important to these proceedings because, pursuant to the doctrine of anticipatory neglect, "[e]vidence of how a parent treats one child is evidence of how he or she may treat the other children." In re Hudson, 294 Mich.App. 261, 266; 817 N.W.2d 115 (2011).
Despite the expectations of the parent-agency treatment plan, respondent-father was often without legal income or suitable housing. The circumstances surrounding MTM's death and MJM's near death made clear that major steps needed to be taken before respondent-father could be trusted with the care of his children. However, respondent-father largely failed to participate in the services, and he largely failed to engage with DHHS and the court. He skipped parenting time and regularly failed to attend court hearings. Indeed, respondent-father did not participate in parenting time for months, and was not present at the best interests hearing, despite receiving notice. Although he completed parenting classes, he demonstrated no benefit from them. Further, at the time of termination, he was on the verge of being terminated from individual therapy because of missed appointments. The record supports the trial court's finding that there were no meaningful improvements with the conditions that led to adjudication. The record also supports the finding that respondent-father would not rectify these barriers within a reasonable time considering AFM's, MJM's, and ZAM's ages. See MCL 712A.19b(3)(c)(i). At the time the trial court found statutory grounds for termination, AFM and MJM had been in DHHS's care for almost three years, and ZAM for almost two years. During these time, respondent-father had made virtually no progress. There was testimony that the children needed permanency and could not wait an indefinite amount of time for respondent-father to comply with his service plan. Therefore, the trial court did not clearly err in finding statutory grounds existed to terminate respondentfather's parental rights under (c)(i). Because termination was proper under (c)(i), it is unnecessary for us to consider the additional ground on which the trial court based its decision. In re HRC, 286 Mich.App. 444, 461; 781 N.W.2d 105 (2009).
As a separate issue, respondent-father argues that the trial court erred by "taking permanent custody of the children." It is not clear what respondent-father means, and he cites no authority to support this argument. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority." In re Warshefski, 331 Mich.App. 83, 87; 951 N.W.2d 90 (2020) (quotation marks and citation omitted). To the extent this is a different framing of the statutory grounds argument, as discussed, that argument is without merit.
B. BEST INTERESTS
Respondent-father argues that the trial court erred by finding termination of parental rights was the best interests of the children. We disagree.
This Court reviews "for clear error the trial court's determination regarding the children's best interests." In re White, 303 Mich.App. 701, 713;846 N.W.2d 61 (2014). "A finding . . . is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed ...." In re MOTA, 334 Mich.App. at 320 (quotation marks and citation omitted; alterations in original). "When applying the clear-error standard in parental termination cases, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id. (quotation marks and citation omitted).
"The trial court must order the parent's rights terminated if [DHHS] has established a statutory ground for termination 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." In re White, 303 Mich.App. at 713. "The trial court should weigh all the evidence available to determine the children's best interests." Id. "The focus at the best-interest stage has always been on the child, not the parent." In re Atchley, 341 Mich.App. at 346 (quotation marks and citation omitted).
The trial court should weigh all the evidence available to determine the children's best interests. To determine whether termination of parental rights is in a child's best interests, the court should consider a wide variety of factors that may include 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. 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 well-being while in care, and the possibility of adoption. [In re White, 303 Mich.App. at 713-714 (quotation marks and citations omitted).]
The evidence suggests that respondent-father was bonded with AFM at times during these proceedings, and all three children sat with him during parenting time. However, by the time of the best-interests hearing, AFM, MJM, and ZAM had been out of respondent-father's care for the majority of their young lives, respondent-father failed to consistently attend parenting time, and he demonstrated a lack of commitment to his case service plan. Moreover, respondent-father consistently lacked stable housing and verifiable income. Respondent-father did not attend the best-interests evaluation or the best-interests hearing, despite being provided notice. AFM, MJM, and ZAM require permanence and stability, and these proceedings had been ongoing for years. Moreover, there was testimony AFM, MJM, and ZAM were doing well in their placements. The testimony suggests that their foster parents are committed to the children's care and adoption will give the children the permanency and stability they need and deserve. "The focus at the bestinterest stage has always been on the child, not the parent." In re Atchley, 341 Mich.App. at 346 (quotation marks and citation omitted).
Respondent-father argues the trial court erred because it did not consider guardianship. While the children were initially placed with their maternal relatives, during the proceedings AFM, MJM, and ZAM left the care of their maternal relatives and entered foster care. The DHHS caseworker testified that adoption was a better permanency plan than guardianship because of the children's ages, and DHHS ruled out relative-placement because no "other [relative] than the [relatives] that they were previously placed with" expressed interest in caring for the children. The trial court agreed, stating: "Guardianship is not appropriate given the children's ages and the continuing risk of harm the parents present to the children." While our Supreme Court, in In re RJK, 501 Mich. 867; 901 N.W.2d 398 (2017), ordered the children's ages should not bar the trial court from considering whether a guardianship would be appropriate, the trial court appropriately found the continuing risk of harm respondent-father presented to the children rendered guardianship an inappropriate option.
II. DOCKET NO. 367552
Respondent-mother's sole argument on appeal is that DHHS failed to make reasonable efforts toward reunification. We disagree.
This Court has held that to preserve an argument about reasonable efforts for family reunification, a respondent-parent must object to services at the time they are offered. In re Frey, 297 Mich.App. 242, 247; 824 N.W.2d 569 (2012). Respondent-mother "failed to object or indicate that the services provided to [her] were somehow inadequate, thereby failing to preserve this issue." Id. Normally this Court reviews "for clear error the trial court's finding that there are statutory grounds for termination of a respondent's parental rights." In re Atchley, 341 Mich.App. at 343. However, unpreserved issues are reviewed for plain error affecting substantial rights. See In re Utrera, 281 Mich.App. 1, 8; 761 N.W.2d 253 (2008). This standard requires a respondent to "establish that (1) error occurred; (2) the error was 'plain,' i.e., clear or obvious; and (3) the plain error affected their substantial rights. And the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings." In re Ferranti, 504 Mich. 1, 29; 934 N.W.2d 610 (2019) (quotation marks, citations, and alterations omitted).
The Michigan Supreme Court has expressed some skepticism about this rule but declined to overturn it. In re Hicks/Brown, 500 Mich. 79, 88-89; 893 N.W.2d 637 (2017).
"In general, when a child is removed from the parents' custody, the petitioner is required to make reasonable efforts to rectify the conditions that caused the child's removal ...." In re Fried, 266 Mich.App. 535, 542; 702 N.W.2d 192 (2005). An order terminating parental rights must state "whether reasonable efforts have been made to . . . rectify the conditions that caused the child's removal from his or her home." MCL 712A.18f(4). "As part of these reasonable efforts, [DHHS] must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification." In re Hicks/Brown, 500 Mich. 79, 85-86; 893 N.W.2d 637 (2017). DHHS "also has obligations under the [Americans with Disabilities Act (ADA), 42 USC 12101 et seq.,] that dovetail with its obligations under" Michigan law. Id. at 86. "Public entities, such as the Department, must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the modifications would fundamentally alter the service provided." Id. (quotation marks, citation, and alterations omitted). "[E]fforts at reunification cannot be reasonable under [Michigan law] if the Department has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA." Id. In addition to DHHS's duty to offer services to the respondent-parent, the respondent-parent has a duty to participate in and benefit from the services. In re TK, 306 Mich.App. 698, 711; 859 N.W.2d 208 (2014).
The evidence suggests that respondent-mother shirked her responsibility to participate in and benefit from the services. As discussed, a child died because of respondent-mother's neglect, so she needed to put forth significant effort before again being trusted to care for young children. It was recommended in respondent-mother's psychological evaluation that she participate in numerous services, which she did not complete. Although she completed parenting classes, she did not demonstrate any benefit. Moreover, she missed parenting time, and was not in contact with her case worker. Respondent-mother participated in individual therapy but did not demonstrate a benefit as evidenced by her inconsistent parenting time. Because of her developmental disability, the court ordered respondent-mother to participate in the NSO program for individuals with developmental disabilities. Importantly, respondent-mother did not object to these services or suggest that NSO was insufficient to accommodate her disabilities. DHHS initiated the process for respondent-mother to participate in this program, but respondent-mother answered "no" to all the questions inquiring about her developmental disability, resulting in NSO finding her ineligible for the program. In general, respondent-mother denied having developmental disabilities, and this made it difficult for DHHS to arrange for services targeting these specific needs. However, respondent-mother did work with a parent partner who DHHS hoped could help her to engage with these services. She eventually completed the screening process with her parent partner, but she claims she did not begin the program because she was waiting for Michigan Integrated Health Services to contact her regarding further steps. DHHS noted this process was terminated because respondent-mother did not answer her phone. The process was reinitiated with the parent partner, requiring respondent-mother to meet with her parent partner, which she failed to do. Respondent-mother did eventually begin therapy with NSO, but she never completed it. Simply put, DHHS attempted to accommodate respondent-mother's disability, but she was noncompliant. Moreover, respondent-mother has not identified additional modifications to the case service plan that could have resulted in the successful removal of reunification barriers.
"Michigan's Parent Support Partner model is a statewide initiative in partnership with the Michigan Department of Health and Human Services that provides Medicaid reimbursable peer-to-peer parent support to eligible families as a part of Michigan's Early Periodic Screening Diagnosis and Treatment State Plan." Association for Children's Mental Health, Parent Support Partner <https://www.acmh-mi.org/get-information/acmh-projects/parent-support-partner- project/> (accessed May16, 2024)..
Affirmed.