Opinion
No. 341508 No. 341509
06-26-2018
In re A. MOORE, Minor.
UNPUBLISHED Berrien Circuit Court Family Division
LC No. 2016-000086-NA Before: MURRAY, C.J., and MARKEY and TUKEL, JJ. PER CURIAM.
In these consolidated appeals, respondent-mother appeals as of right the trial court order terminating her parental rights to the minor child, AM, under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist) and MCL 712A.19b(3)(g) (failure to provide proper care or custody). Respondent-father appeals as of right the same order terminating his parental rights to the minor child under the same provisions. We affirm.
AM suffered from what is commonly known as short gut syndrome. Shortly after birth, she contracted an infection and 80% of her bowel had to be removed, so she received much of her nutrition through a catheter. In June 2016, Child Protective Services (CPS) received a referral regarding medical neglect of AM. She arrived at the hospital for a previously scheduled visit to remove sutures from a recent surgery to replace the catheter. During the appointment, the doctor found that the catheter was obstructed and advised mother that AM needed to be admitted to the hospital. Mother told the doctor that there had been an issue with the catheter for three days, but no one had notified a doctor. Mother agreed to admit AM to the hospital, but she did not do so right away. Instead, she left with AM to pick up father. She called the hospital later to tell the staff that her car broke down and that she did not know when she could bring AM back to the hospital. Subsequent attempts to contact mother were unsuccessful, and the staff was concerned because the parents had a history of missing medical appointments for AM. Six hours later, AM was admitted to the hospital and remained there for multiple days.
A CPS investigator met with the maternal grandmother at the parents' residence, which was a one-bedroom camper. The CPS investigator found that there was no bathroom, the only access to running water was a small sink in the kitchen area, there was no bed or crib for AM, the camper smelled of animal feces or urine, and dishes on the counter appeared to have been sitting there for several days. The maternal grandmother told the CPS investigator that the family could stay with her until they could properly clean the camper. However, the maternal grandmother's home was also not fit for a child. The home had a strong odor of animal feces or urine, there were dark stains on the carpet, there was an ashtray on the end table, there was no bed or crib for AM though she stayed there often, and the maternal grandmother stated that she smoked cigarettes and used marijuana in the home nightly to treat a seizure disorder.
AM's doctor was concerned about the family's poor hygiene because AM was at a high risk of infection of her catheter and was immunologically vulnerable. The doctor reported that the family did not appear to appreciate the seriousness of AM's medical condition and that they had missed three of AM's medical appointments with the pediatric gastroenterology specialist. The doctor also could not rule out that the problems with the catheter had been caused by mother and father's failure to maintain the catheter as required.
Mother and father each had a history of drug abuse, and at the time of AM's removal from their care, both had warrants for their arrests. Mother and father's barriers to reunification, as identified by the caseworker, were housing issues, resource management, parenting skills (including the ability to care for AM's medical needs), substance abuse, and emotional stability.
Initially, mother and father actively participated in counseling and parenting classes. Eventually, they finished the Triple P parenting class. Both entered inpatient substance abuse programs on two occasions, but neither parent ever completed a program. When termination proceedings began 16 months after removal, mother and father had not completed and were not involved in any substance abuse treatment or individual counseling. Yet, they both consistently tested positive for THC, methamphetamines (meth), and amphetamines. Mother had her first negative drug screen a mere two weeks before termination proceedings began in October 2017. Father had one negative screen in September 2016 but then had exclusively positive screens until mid-October 2017. Both parents interacted appropriately with AM during visits but often showed up late or left early. They also missed several of AM's doctor's appointments or arrived late to the appointments.
The trial court ordered that both mother's and father's parental rights be terminated after finding that statutory grounds for termination had been established and that termination was in the child's best interests. Mother and father now appeal.
I. STATUTORY GROUND
Mother and father argue on appeal that the trial court clearly erred in finding a statutory ground for termination. We disagree.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). "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 and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established . . . ." In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016) (quotation marks and citation omitted). "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 Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (some quotation marks, citation, and alterations omitted).
The provisions under which the trial court terminated mother's and father's parental rights, MCL 712A.19b(3)(c)(i) and (g), state in relevant part as follows:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
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(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.
* * *
(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.
The trial court can find that a statutory ground exists for termination under MCL 712A.19b(3)(c)(i) if "the totality of the evidence amply supports that [respondents] had not accomplished any meaningful change in the conditions existing by the time of the adjudication." In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009). Additionally, "[a] lack of cooperation with reunification services, or other court-ordered conditions, can bear on a termination decision, if that lack of cooperation relates to issues of abuse or neglect." In re LaFrance, 306 Mich App 713, 729; 858 NW2d 143 (2014). Moreover, a failure to benefit from services supports termination under MCL 712A.19b(3)(c)(i) or (g). Id. at 728-729. When working with a special-needs child in particular, drug use in combination with missed doctor's appointments and a failure to engage in the services needed to address the child's medical condition can support termination under the same grounds. See id. at 729.
At the time of termination, mother and father had recently decided to separate. Mother had housing that the agency considered adequate, but her income was not sufficient to even cover housing and utility costs. Father was living with a friend until he could find an apartment. He owned his own mobile mechanic business. He initially stated that he had $28,000 of income during the previous year and expected that amount to quadruple in the current year but later stated that he expected to make only $10,000 more in the current year as compared to the previous year. Neither parent had independent transportation, which posed a concern that they would not be able to respond to a medical emergency if AM were placed in their care.
The trial court acknowledged that the parents interacted appropriately with AM in their weekly visits. However, because they had missed medical appointments for AM, the trial court had concerns that they did not fully appreciate AM's medical needs and the resulting treatments, which were extensive. There was also a question of how they would care for AM while they were working. Mother testified that she would have the maternal grandmother care for AM, but the agency did not approve of the maternal grandmother as a caretaker because of her history of marijuana use, cigarette smoking, and termination of parental rights to some of her own children. Father testified that he planned to use a retired nurse for childcare and claimed that the nurse would provide childcare at no charge.
The issue that the caseworker indicated was the most significant issue throughout the course of the case was the parents' substance abuse and lack of engagement in treatment. Mother tested positive on every drug screen for the first 15 months of the case. As recently as two weeks before the termination proceedings began, father tested positive for marijuana, meth, and amphetamines. Neither parent completed any substance abuse program or individual counseling to address their drug use.
Given the above information, mother and father did not make any meaningful change in the conditions existing at the time of adjudication, especially in regard to substance abuse. The failure to address substance abuse directly related to their ability to care for their child because drug use compromised their capacity to respond to AM's medical needs and drained their financial resources. The drug use combined with the lack of engagement in AM's medical appointments supported the trial court's finding that they had not rectified the conditions leading to adjudication and that they could not provide proper care and custody for AM within a reasonable time considering AM's age. See In re LaFrance, 306 Mich App at 728-729; In re Williams, 286 Mich App at 272. Their continuous drug use for 15 of the 16 months between removal and termination further supported the trial court's conclusion that they would not be in a position to care for AM within a reasonable time. Thus, we conclude that the trial court did not clearly err in finding that, at a minimum, the statutory ground under MCL 712A.19b(3)(c)(i) to terminate respondents' parental rights was proven by clear and convincing evidence. And because at least one statutory ground was established, we need not expressly address whether any other ground supported termination as well. See In re Foster, 285 Mich App 630, 633; 776 NW2d 415 (2009).
In the context of his argument that a statutory ground for termination was not established, father also argues that the services that the agency offered to address his drug use were inadequate. This issue is unpreserved on appeal because father "failed to object or indicate that the services provided to him were somehow inadequate" at the time that the trial court adopted the service plan. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Thus, we review this issue for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). In this case, father did not indicate that he had any objection to the services offered by the agency until the final day of the termination hearing, and at that time he simply stated that the inpatient rehabilitation program and substance abuse counseling program were not helpful to him because he did not feel that the counselors truly understood his struggles. We conclude that the trial court did not plainly err in finding that the multiple services offered to father were adequate, especially considering that he did not raise the issue at a time when the trial court or agency could have adjusted services. See In re Frey, 297 Mich App at 247; In re Utrera, 281 Mich App at 8-9.
II. BEST INTERESTS
Mother and father also argue on appeal that the trial court clearly erred in finding that termination was in AM's best interests. We disagree.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). "The trial court must find by a preponderance of the evidence that termination is in the best interests of a child." In re Jones, 316 Mich App 110, 119; 894 NW2d 54 (2016). This Court reviews for clear error the trial court's determination that termination was in the children's best interests. In re Schadler, 315 Mich App at 408.
"In deciding whether termination is in the child's best interests, the 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, 297 Mich App at 41-42 (citations omitted). "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 701, 714; 846 NW2d 61 (2014), and "whether it is likely that the child could be returned to her parents' home within the foreseeable future, if at all," In re Jones, 316 Mich App at 120 (quotation marks and citation omitted). "With respect to the trial court's best-interest determination, we place our focus on the child rather than the parent." In re Schadler, 315 Mich App at 411.
Mother and father both argue that termination was improper because of the bond that existed between them and AM and that the trial court focused on their shortcomings rather than AM's best interests. However, the child's bond to the parent is only one of the factors to be considered in the best-interest analysis, and the trial court properly looks at parenting ability in determining whether termination is in the child's best interests. See In re Olive/Metts, 297 Mich App at 41-42.
Here, the trial court reviewed multiple factors in concluding that termination was in AM's best interests. The trial court noted that mother and father used marijuana, meth, and amphetamines regularly throughout the course of the case and did not effectively address their drug use, which compromised their ability to care for a medically fragile child. The trial court reviewed the advantages of AM's foster home over placement with either parent and noted that both foster parents were retired so they had the ability to put forth the extensive time and effort needed to care for AM and that AM's foster mother was a retired pediatric nurse who was particularly well-suited to respond to AM's medical needs. In contrast, the parents missed several medical appointments for AM, which would have updated them on her progress and treatment. Father admitted that AM required hospitalization eight times in the year before she was removed from the parents' care, but since she was placed in foster care, she had not required hospitalization even once. The trial court found that AM was highly adoptable based on her foster father's testimony. The trial court also concluded that AM could not safely be returned to either parent's care within the foreseeable future given their failure to address substance abuse issues for 15 of the 16 months between removal and termination. We conclude that the trial court did not clearly err in finding by a preponderance of the evidence that termination was in AM's best interests.
III. MEANINGFUL OPPORTUNITY TO PARTICIPATE
Father additionally argues that he was denied a meaningful opportunity to participate in the termination hearing. At the end of the first day of the termination hearing, father was arrested, on an unrelated matter, and escorted from the courtroom before the trial court announced the date and time of the adjourned hearing. At the beginning of the second day of the termination hearing, father's counsel asked the trial court to review whether service of notice of the hearing was proper for father. The trial court discussed with the attorneys and parties whether father had been properly notified of the adjournment but could not find any conclusive proof that he had. As a result of this lack of proof of service, father's counsel requested an adjournment of father's portion of the termination hearing, which the trial court granted.
Accordingly, we hold that father waived his claim of error with respect to this issue when his counsel requested an adjournment of father's portion of the termination hearing to rectify the improper notice of the adjournment hearing, and the trial court responded by doing as father's counsel requested. "Waiver has been defined as the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citation omitted). "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error." Id. (quotation marks and citation omitted). Thus, because the trial court proceeded in the manner requested by father's counsel, and father's counsel affirmatively approved the trial court's decision, father is not entitled to appellate review of this issue. See id. at 215-216; Blazer Foods, Inc v Restaurant Props, Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003) ("A party may not take a position in the trial court and subsequently seek redress in an appellate court that is based on a position contrary to that taken in the trial court.") (quotation marks and citation omitted).
Affirmed.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Jonathan Tukel