Opinion
No. 347927
09-19-2019
In re A. L. NASH-WEEKS, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ionia Circuit Court Family Division
LC No. 2018-000045-NA Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the trial court order terminating her parental rights to AN pursuant to MCL 712A.19b(3)(c)(i), MCL 712A.19b(3)(c)(ii), and MCL 712A.19b(3)(j). Because petitioner, the Department of Health and Human Services (DHHS), provided reasonable efforts to reunify respondent with AN, and because the trial court did not clearly err by finding statutory grounds to terminate respondent's parental rights, we affirm.
I. BASIC FACTS
In February 2018, the DHHS filed a petition requesting the trial court take temporary jurisdiction over AN, alleging that respondent's substance abuse and erratic behavior put AN at risk following her birth. The DHHS asserted that respondent's behavior before giving birth was "very combative" and inappropriate, that AN was born with positive results for amphetamines and methamphetamines in her meconium, and that respondent tested positive for amphetamines, Cannabinoids, and oxycodone. Medical staff contacted child protective services because of respondent's erratic and unstable behavior, which included refusing feeding tubes for her daughter, attempting to remove an IV, verbally abusing staff, and failing to follow a behavioral plan established because of her erratic behavior.
At the adjudication hearing, respondent pleaded no contest to the allegation that AN's meconium tested positive for amphetamines and methamphetamines. As a factual basis for respondent's plea, a copy of the medical record reflecting the test results was admitted. The trial court found that there was sufficient evidence to exercise jurisdiction under MCL 712A.2(b)(1) and (b)(2). Respondent agreed to comply with the case services plan, and she was provided with services aimed at reunification, including referrals for counseling to address her substance abuse and lack of emotional stability, supervised parenting time, random drug screens, referrals for a psychological evaluation, case management, and employment resources guides. In addition, in June 2018, respondent was admitted for treatment at "Our Hope," a residential substance-abuse program.
Respondent's ability to comply with the case services plan was complicated by the fact that she was incarcerated on seven different occasions during the pendency of the case. Furthermore, her caseworker testified that respondent missed drug screens, tested positive for methamphetamines on multiple occasions, failed to complete a psychological evaluation despite referrals to two doctors, left the residential substance-abuse program "against medical advice," participated in only nine parenting-time visits, failed to communicate consistently, made no meaningful progress in obtaining employment, and failed to secure stable and suitable housing. Accordingly, in January 2019, the DHHS petitioned the court to terminate respondent's parental rights.
Following the termination hearing, the trial court found that there was clear and convincing evidence of grounds to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), and (j), and it found by a preponderance of the evidence that termination of respondent's parental rights was in AN's best interests. Accordingly, the court entered an order terminating respondent's parental rights.
II. GROUNDS FOR TERMINATION
A. STANDARD OF REVIEW
Respondent argues that the trial court clearly erred by terminating her parental rights. This Court reviews for clear error a trial court's finding that a statutory ground for termination has been proven by clear and convincing evidence. In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." Id. at 296-297.
B. ANALYSIS
In order to terminate a parent's 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) have been established by the petitioner. In this case, the trial court found that there was clear and convincing evidence to support termination under subdivisions (c)(i), (c)(ii), and (j). Termination is proper under MCL 712A.19b(3)(c)(i) and (c)(ii) if:
(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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.Termination is proper under MCL 712A.19b(3)(j) if "[t]here 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."
Initial disposition in this case was on March 21, 2018. The termination hearing was held just under a year later on February 21, 2019. The primary condition leading to adjudication was respondent's substance abuse. The trial court found that respondent's substance abuse had not been rectified by the time of the termination hearing, which was over 182 days after initial disposition. Respondent does not dispute those findings on appeal. Instead, she argues that the termination of her parental rights was based solely on her substance abuse and the doctrine of anticipatory neglect despite the fact that there was no evidence showing that AN was harmed by respondent's substance abuse.
Respondent asserts that this case is controlled by In re LaFrance minors, 306 Mich App 713; 858 NW2d 143 (2014). In that case, this Court explained that "drug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through operation of the doctrine of anticipatory neglect." Id. at 731. The doctrine of anticipatory neglect allows an inference that a parent's treatment of one child is probative of how that parent may treat other children. Id. at 730. The probative value of such an inference, however, is decreased by differences between the children, such as age and medical conditions. Id. at 730-731. In LaFrance, there was evidence that the respondent parents had neglected their youngest child. Id. at 726-729. However, there was no evidence that they had ever abused or neglected their three older children. Id. at 730. The trial court nevertheless found grounds to terminate the respondents' parental rights to all the children, relying heavily on the parents' failure to address their substance-abuse issues. Id. at 730. This Court reversed, finding that the court's reliance on the parents' failure to control their substance-abuse issues and on the doctrine of anticipatory neglect was insufficient to warrant termination when considering alongside the fact (1) that the older children, whose ages ranged from five to twelve, had different needs than the infant that was neglected; and (2) that, unlike their infant sibling, the older children did not require special care for cerebral palsy. Id. at 730-731.
Here, unlike the older children in LaFrance, AN was negatively affected by respondent's substance abuse. The record very plainly reflects that when she was born her meconium tested positive for methamphetamines and amphetamines. In addition, respondent candidly admitted that she "used a couple of different times while" pregnant and "never thought of how it would affect [AN]." Respondent explained that she was "more worried" about herself, and she added "when you're an addict . . . you're not thinking of anybody else" or "how your behaviors affect anybody around you . . . ." Respondent's focus on the absence of brain damage or withdrawal symptoms ignores the reality that she used illegal substances while she was pregnant, that she did so without regard to AN's health, and that as a result of her substance abuse her daughter was born with methamphetamines and amphetamines in her body.
Moreover, unlike the trial court in LaFrance, the court in this case found that there were additional barriers to reunification that were not rectified. For instance, a lack of suitable housing was identified as a barrier to reunification. Respondent was unable to find suitable housing. She was incarcerated on seven separate occasions, spent a little less than a month at a residential treatment facility, and spent at least some time at a homeless shelter. However, when her caseworker attempted to confirm that respondent was at the shelter, she was informed that while respondent had been there previously, she was not residing there. In addition, although respondent was living with her mother when AN was born, and although she testified that her mother would allow her to do so again if AN was returned to her care, the record reflects that respondent was arrested following a dispute at her mother's house in December 2018. Accordingly, on this record, the trial court did not clearly err by finding that housing remained a barrier to reunification and that there was no reasonable likelihood that it would be rectified in a reasonable time considering AN's age.
The court also identified respondent's lack of employment as a barrier. Respondent's caseworker testified that she provided respondent with resource guides to aid her in obtaining employment. She stated that on one occasion respondent reported having a job interview, so she called and cancelled parenting time, and on another occasion respondent stated that she was waiting to hear back on an employment opportunity. Yet, at the time of trial, respondent acknowledged that she did not have a job. Therefore, this barrier to reunification was not rectified. Furthermore, there was not a reasonable probability that it would be rectified within a reasonable time considering AN's age.
Another barrier to reunification was respondent's emotional stability. To address her emotional issues, respondent was referred to individual therapy, but never followed through with the first referral because she was incarcerated. After her release from jail, her caseworker spoke to her regarding a second referral, but because of unstable communication between the two, it was never completed. Insight into respondent's emotional stability is also reflected in respondent's behavior while incarcerated. Respondent's caseworker met with her in March 2018 at the jail, but during the meeting respondent "escalated" and left, slamming the door. The jail sergeant later informed respondent's caseworker that respondent "was showing unstable behavior, so they wanted her to be evaluated." At the evaluation, respondent stated that she did not want parenting time because she did not want to get attached to AN. Then when incarcerated in August 2018, following a single parenting-time visit, the jail sergeant suspended respondent's parenting time at the jail because of respondent's behavior and possible criminal activity.
Furthermore, when she was arrested in December 2018, respondent had drug paraphernalia (used syringes) and tested positive for methamphetamine and marijuana. When she was arrested in February 2019 (less than a month before the termination hearing), respondent tested positive for methamphetamines. The officer who arrested respondent in December explained that when he arrested her he believed she was under the influence, and he recounted that she resisted arrest by pulling away from him, kicking his shins, and spitting. He also testified that she threatened him, stating that she hoped he and his family would die, that she was going to put a "hit" out on him, and that she hoped he had a girlfriend and a child so that she could kill both of them in front of him and torture him. The officer that arrested respondent in February 2019 testified that respondent was barefoot, was "dancing and twrilling [sic] and acting erratic," was unable to focus or maintain a coherent train of thought, and identified herself as "Jesus."
Finally, respondent acknowledged that she needed help with her emotions. Respondent testified that at the hospital the caseworkers "came" at her "roar[ing]," which was really scary. She stated that she was "an emotional wrecking ball," and did not know how else to react because she was "upset" and "angry." She added that she had already had a bad experience and was not given the proper tools to know how to react. Therefore, on this record, respondent's emotional stability remained a barrier to reunification.
For the foregoing reasons, the trial court did not clearly err by finding termination was proper under MCL 712A.19b(3)(c)(i), (c)(ii), and (j). Respondent had a well-documented substance-abuse problem, and she acknowledged to putting her needs above those of AN because of her addiction. Although she acknowledged in her testimony that she had a problem and stated that she intended to seek treatment, she was unable to make any lasting progress toward sobriety since AN was removed from her care. In addition, she continued to lack suitable housing and employment and there was no indication on the record that she would be able to rectify either of those conditions in a reasonable amount of time. Finally, respondent's emotional stability remained a problem and there was nothing indicating that she would be able to address it within a reasonable amount of time.
III. REUNIFICATION EFFORTS
A. STANDARD OF REVIEW
Respondent also argues that the order terminating her parental rights should be reversed because the DHHS did not make reasonable efforts to reunify her with AN. Whether reasonable efforts for reunification were made is reviewed for clear error. In re Fried, 266 Mich App 535, 542-543; 702 NW2d 192 (2005).
B. ANALYSIS
"Generally, 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 by adopting a service plan." In re HRC minors, 286 Mich App 444, 462; 781 NW2d 105 (2009). An absence of reasonable reunification efforts may render termination premature. In re Mason minors, 486 Mich 142, 152; 782 NW2d 747 (2010). However, "[w]hile the [DHHS] "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). In this case, respondent was provided with a number of services aimed at reunifying her with AN. She was provided with referrals for a psychological evaluation, but never followed through. She was provided with random drug screens, but missed so many that she was terminated from the screening program for noncompliance. She was admitted to a residential substance-abuse treatment program, but left against medical advice before it was completed. Respondent was provided with supervised parenting time. The DHHS attempted to facilitate parenting time between respondent and AN while respondent was incarcerated, but due to respondent's behavior at the jail respondent's caseworker was told visits would not be permitted. The DHHS also attempted to facilitate visits between respondent and AN while respondent was at the residential treatment program, but respondent's behavior at that facility likewise resulted in limited contact. Accordingly, respondent's argument that she was not provided with reasonable reunification services does not warrant reversal.
Respondent asserts that there was a "rush" to terminate and that there was no need to mandate permanence for AN "so quickly." She asserts that she just wanted to be given an opportunity to succeed, but in doing so she ignores that she had months to rectify the conditions leading to adjudication but made little to no progress. Regardless, in support of her argument, respondent directs this Court to MCL 712A.19a(8), which provides:
(8) If the court determines at a permanency planning hearing that a child should not be returned to his or her parent, the court may order the agency to initiate proceedings to terminate parental rights. Except as otherwise provided in this subsection, if the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, the court shall order the agency to initiate proceedings to terminate parental rights. . . .This provision provides that termination must be sought if the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, but it does not prohibit petitioner from seeking termination after the child has been in care for less than 12 months. Indeed, MCL 712A.19b(3)(c)—one of the statutory grounds used to terminate respondent's parental rights—includes its own temporal requirement, i.e., that more than 182 days have elapsed between initial disposition and termination. Given that more than 182 days had elapsed between the initial disposition and the termination, respondent's contention that the court improperly rushed to termination is without merit.
Affirmed.
/s/ Brock A. Swartzle
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly