Opinion
No. 350245
09-10-2020
In re O'BRIEN/CUDNEY, Minors.
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 UNPUBLISHED Oakland Circuit Court Family Division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. 19-869478-NA Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ. PER CURIAM.
Respondent-mother, LR, appeals as of right the trial court's order terminating her parental rights to the minor children, GLO and KEC, at the initial dispositional hearing pursuant to MCL 712A.19b(3)(g) (failure to provide proper care or custody despite a financial ability to do so), (i) (parental rights to another child were terminated due to serious and chronic neglect or physical or sexual abuse), and (j) (reasonable likelihood of harm if children returned to the parent's care). We affirm.
I. BACKGROUND
Respondent has four children, of whom only GLO and KEC are at issue in this appeal. Plaintiff previously voluntarily relinquished her parental rights to the two other children. Respondent is the children's sole caregiver. In early 2018, respondent lost her employment and housing. She placed many of her personal belongings, including her identification, the children's birth certificates, and their social security cards, in a storage unit. Unfortunately, plaintiff failed to pay a rental fee, whereupon those belongings were disposed of. She sought and received assistance from two agencies, and she moved herself and the children to Oakland County in order to receive funding from those agencies. At the time, GLO was two years old and KEC was four months old. With the funds she was provided, respondent and the children moved into a Red Roof Inn, where they remained for four months.
In August of 2018, Oakland County Child Protective Services ("CPS") received a complaint that the children were being unsupervised and neglected, respondent was engaging in prostitution out of the hotel room, and respondent was abusing drugs. Respondent tested positive for marijuana and cocaine on two separate drug tests administered three days apart. Respondent admitted that she used marijuana infrequently, but denied doing so around the children. She provided the CPS investigator with an expired medical marijuana card. Respondent also disclosed that she had been diagnosed with post-traumatic stress disorder ("PTSD"), attention deficient hyper activity disorder ("ADHD"), bipolar disorder, and borderline personality disorder. Respondent admitted that she was not currently participating in any mental health services. CPS discovered that the funding respondent was receiving would soon be exhausted and could not be renewed, and respondent had no viable long-term plans. The investigator opined that the children appeared to have an appropriate place to sleep at the Red Roof Inn, no concerning marks or bruises, and food to eat.
Shortly after CPS became involved, respondent was evicted from the Red Roof Inn for complaints of noise, people coming into and out of her hotel room, and claims of prostitution. However, the CPS investigator admitted that she did not talk to any representative of Red Roof Inn. With the financial assistance of another Red Roof Inn resident, "Eddie" (later identified as Eddie Phelps), and respondent's sister, respondent spent a few nights at a Motel 6, and then she moved to a Knight's Inn with the children. Respondent suggested to the CPS investigator that she was working on a plan with Phelps. The CPS investigator opined that the children appeared to have a place to sleep at the Motel 6, but they were dirty. CPS originally intended to help respondent obtain copies of the children's birth certificates so that she could apply for housing. However, the investigator testified that after respondent tested positive for marijuana and cocaine twice, petitioner filed a petition seeking termination of respondent's parental rights at the initial disposition pursuant to MCL 712A.19b(3)(g), (i), and (j).
The allegation of prostitution was never ultimately supported by any non-hearsay evidence. Indeed, as our dissenting colleague observes, it was seemingly only supported by double hearsay. We disagree with our dissenting colleague's belief that we are relying on this allegation for anything more than background.
It would later turn out that the CPS investigator was mistaken about the first test, which was only positive for marijuana.
After the preliminary hearing, the children were placed in a licensed foster home where they remained throughout the proceedings. Respondent was offered supervised parenting time at the agency twice a week. Proceedings were delayed to permit compliance with the Indian Child Welfare Act ("ICWA"), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act, MCL 712B.1 et seq. Finally, following a hearing in March 2019, the trial court found, by a preponderance of the evidence, that it could exercise jurisdiction over the minor children. The court also concluded that statutory grounds for termination of respondent's parental rights had been established by clear and convincing evidence. A best-interest hearing was held over three days between June and July 2019, after which the trial court found that termination of respondent's parental rights was in the children's best interests. This appeal followed.
II. PRINCIPLES OF LAW AND STANDARDS OF REVIEW
Child protective proceedings are generally divided into two phases: the adjudicative and the dispositional. The adjudicative phase determines whether the
probate court may exercise jurisdiction over the child. If the court acquires jurisdiction, the dispositional phase determines what action, if any, will be taken on behalf of the child. [In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993).]To acquire jurisdiction over the children, petitioner must establish by a preponderance of the evidence that one of the statutory grounds in MCL 712A.2(b) has been established. Id. at 108-109. The child's situation must be examined as of the time the petition is filed. In re MU, 264 Mich App 270, 279; 690 NW2d 495 (2004). " 'Preponderance of the evidence' means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth." People v Cross, 281 Mich App 737, 740; 760 NW2d 314 (2008).
"Upon a finding of jurisdiction, the probate court has several options," including terminating the parent's parental rights if the statutory elements in MCL 712A.19b(3) are established by clear and convincing evidence. Brock, 442 Mich at 111-112; In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). "Once a statutory ground for termination is established by clear and convincing evidence, the trial court must terminate parental rights unless it finds from the whole record that termination clearly is not in the child's best interests." In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004). Whether termination of parental rights is in a child's best interests must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
This Court reviews the trial court's findings of fact for clear error. MCR 3.977(K); In re BZ, 264 Mich App at 296. This Court also reviews for clear error whether the trial court properly decided to exercise jurisdiction in light of its findings of fact. Id. at 295. The trial court's best interests finding is likewise reviewed for clear error. Id. at 301. "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. In general, a trial court's conclusions of law are reviewed de novo. Chapdelaine v Sochocki, 247 Mich App 167, 169; 635 NW2d 339 (2001).
III. JURISDICTION OVER THE CHILDREN
Respondent first challenges the trial court's exercise of jurisdiction over the children. We find no error warranting reversal. The trial court exercised jurisdiction under MCL 712A.2(b)(1) and (2), which provide that a court has jurisdiction over a child in the following circumstances:
(1) Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship . . .
(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.
As discussed above, at the time the petition was filed, respondent had been living on charity for several months and those funds were about to be terminated. Although the children were apparently being clothed and fed, respondent had not used the time to devise any kind of long-term plan, obtain new employment or an alternative source of income, or find stable housing. Rather, respondent was abusing drugs, one of which might have been pursuant to an expired medical marijuana card, but the other was certainly not a substance respondent could plausibly claim she might have believed to be legal or safe. Respondent was evicted from the hotel for repeated complaints of noise and possible prostitution. Although the latter was not, seemingly, confirmed in any way, respondent's eviction was at least some evidence that the hotel did not consider her conduct, whatever it was, to be benign. Importantly, there would have been no plausible way respondent could have engaged in any of the above activities outside the presence of the children.
Again, it would later turn out that respondent only tested positive for cocaine once, but at the adjudicative hearing, the CPS investigator indicated that respondent tested positive for marijuana and cocaine on both tests. Whether the trial court properly assumed jurisdiction obviously depends on what the trial court knew at the time.
Although respondent obviously did not have complete control over all of her circumstances, she certainly had a choice whether to engage in drug abuse or possible prostitution. We are not definitely and firmly convinced that the trial court erred by finding a preponderance of evidence that respondent was able to provide an environment for the children that was at least safe while she sought an environment that was more stable, but instead neglected to do so. MCL 712A.2(b)(1). At the time the court assumed jurisdiction of the children, there was sufficient evidence to conclude that respondent had not provided proper care and custody for the children and that there existed a likelihood of continuing harm to the children.
IV. REASONABLE EFFORTS
Respondent argues that petitioner failed to make reasonable efforts to avoid removal of the children. We disagree.
As an initial matter, there is a difference between removal and reunification. Technically, reunification is impossible if there has been no removal. As our dissenting colleague recognizes, prior to filing the petition, the CPS investigator provided respondent with a list of shelters and churches to call regarding housing. The CPS investigator also discussed food resources with respondent. CPS was clearly endeavoring to work with respondent. Respondent argues that all of her problems stemmed from her lack of proper identification, and petitioner neglected its duty to help her obtain replacement identification, with which she could have replaced her medical marijuana card, applied for employment, and sought secure housing. However, the agency providing respondent with funds had apparently already been helping her obtain replacement identification, she did have some kind of "paper" identification in August of 2018, and CPS was attempting to obtain identification for the children until respondent tested positive for marijuana and cocaine. Pursuant to MCR 3.965(C)(4), "the child's health and safety must be of paramount concern to the court" when determining whether reasonable efforts had been made. In light of the efforts CPS did make until respondent tested positive for drugs and was evicted from the Red Roof Inn, we do not find clear error in the determination that petitioner's efforts to avoid removal were reasonable.
Our dissenting colleague largely focuses on the fact that petitioner made no efforts at reunification. As our dissenting colleague observes, "[r]easonable efforts to reunify the child and family must be made in all cases," absent certain aggravating circumstances. MCL 712A.19a(2). However, this Court has explained that reunification services are not required where, as here, the initial petition seeks termination from the outset (and, as we will discuss, certain other conditions are met). In re Moss, 301 Mich App 76, 91; 836 NW2d 182 (2013). Our Supreme Court precedent does not seem to contradict Moss, because the cases we can find involve subsequent termination petitions filed after proceedings, rather than initial termination petitions. See In re Rood, 483 Mich 73, 77-88; 763 NW2d 587 (2009); In re Mason, 486 Mich 142, 147-149; 782 NW2d 747 (2010); In re Hicks/Brown, 500 Mich 79, 83-84; 893 NW2d 637 (2017).
Moss relied on MCR 3.977(E), under which reunification efforts are not to be made if:
(1) the original, or amended, petition contains a request for termination;We note that MCR 3.977(E) lacks conjunctions between the enumerated conditions, making it difficult to determine on its face whether all of the conditions or only one of the conditions must be met. However, our Supreme Court has long held that the courts must sometimes read the proper conjunction into a statute to effectuate the intent of the Legislature. See Elliott Grocer Co v Field's Pure Food Market, 286 Mich 112, 115-116; 281 NW 557 (1938). The Moss Court implicitly concluded that all of the requirements were necessary. Moss, 301 Mich App at 91-92. We find no reason not also to read the word "and" into the end of each enumerated condition. Nonetheless, we believe it would be helpful for our Supreme Court to provide further clarity.
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), or (m);
(4) termination of parental rights is in the child's best interests. [See Moss, 301 Mich App at 91-92.]
As noted, the initial petition requested termination of both children, satisfying MCR 3.977(E)(1). As we discuss below, and as our dissenting colleague seemingly does not dispute, termination was in the children's best interests, satisfying MCR 3.977(E)(4). The somewhat more confusing provisions are (2) and (3), each of which contain their own timing requirement. The reason for the confusion is simply that the initial hearing was never really concluded for seven months, due to the need to resolve ICWA concerns. We appreciate our dissenting colleague's concerns that during that time, the children were essentially in limbo and petitioner was not offering anything to respondent. However, ultimately, the trial court did find grounds for jurisdiction after a contested hearing, and it did find grounds for termination at the same hearing. Thus, MCR 3.977(E)(2) and (3) are also satisfied. Pursuant to the court rule, reunification efforts were not required.
Our dissenting colleague goes on to argue that petitioner had no right to seek initial termination. We recognize that this Court has the discretionary authority to identify and address issues not argued by the parties. Mack v Detroit, 467 Mich 186, 207; 649 NW2d 47 (2002); Paschke v Retool Industries (On Reh), 198 Mich App 702, 705; 499 NW2d 453 (1993) (emphasis in original), rev'd on other grounds 445 Mich 502; 519 NW2d 441 (1994). Nonetheless, parties are generally obligated to provide some kind of argument in order to entitle them to appellate consideration. Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). We are not persuaded that the record or the briefs in this matter are sufficient to warrant straying so far afield from the parties' actual arguments. We conclude that petitioner was not obligated to provide reunification services, and the trial court did not clearly err when it found that the children came within its jurisdiction and that reasonable efforts had been made to avoid removal.
We do recognize that, as our dissenting colleague observes, there are some inconsistencies in the trial court's orders, but no argument has been made that petitioner violated a court order. --------
V. GROUNDS FOR TERMINATION
Respondent argues that the trial court erred in finding a statutory ground for termination of her parental rights established by clear and convincing evidence. We disagree. The trial court terminated respondents' parental rights pursuant to MCL 712A.19b(3)(g), (i), and (j), which permit termination of parental rights under the following circumstances:
(g) The parent, although, in the court's discretion, financially able to do so, 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.
* * *
(i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.
(j) There 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.
We note as an initial matter that, insofar as we can determine from the record, respondent voluntarily relinquished her parental rights to her two older children. Furthermore, the prior petition resulting in those relinquishments was apparently based on respondent leaving the children in the care of their grandparents and using marijuana. The record is utterly devoid of any evidence that we can find from which it could be found that respondent's parental rights to any prior children were "terminated due to serious and chronic neglect or physical or sexual abuse." The trial court unambiguously erred in finding MCL 712A.19b(3)(i) established by any quantum of evidence. Furthermore, it is obvious that respondent was not, in fact, "financially able to" provide proper care or custody for the children, so the trial court equally unambiguously erred in finding MCL 712A.19b(3)(g) established. However, only one ground for termination must be established, so any error in finding any other grounds is necessarily harmless. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
In addition to the facts already discussed above, it was later determined that although the children had initially appeared physically fine when they were first seen in August of 2018, they were both behind on their immunizations and their well-child checkups. They were bitten by bedbugs after moving out of the Red Roof Inn. Although respondent only tested positive for cocaine once, contrary to the testimony at the adjudication hearing, and although marijuana is now legal for recreational use, the fact remains that neither are healthy to use in the presence of children. Respondent either used drugs in the presence of the children, or she left them unattended for the purpose of using drugs. Furthermore, the legality of marijuana aside, respondent clearly has a history of using it irresponsibly. In addition to using them in the children's presence, she did so despite knowing she was under CPS scrutiny. Furthermore, one of the children tested positive for marijuana at birth. Despite receiving support for several months, respondent failed to make use of the opportunity to develop a plan for caring for the children, or any indication of longer-term stability. The evidence indicated that respondent had multiple serious mental health issues for which she was not receiving treatment.
The question is a very close one, and we have some doubt that we would have arrived at the same conclusion as the trial court. However, doubt about an outcome does not, by itself, establish that it was wrong. See People v Wolfe, 440 Mich 508, 519; 489 NW2d 748 (1992) ("doubt about credibility is not a substitute for evidence of guilt"). Even if we were to review this matter de novo, we would still be obligated to recognize that the trial court was in the better position to assess the witnesses' credibilities. See Matter of Loyd, 424 Mich 514, 535; 384 NW2d 9 (1986). Our deference to the trial court is not blind, but we cannot reverse simply because we do not believe we would have reached the same conclusion. Beason v Beason, 435 Mich 791, 803-804; 460 NW2d 207 (1990). It follows that under the clear error standard of review, we must have more than just some misgivings to reverse on a close evidentiary question. In light of the above evidence, we are therefore constrained to conclude that the trial court properly found grounds for termination established by clear and convincing evidence under MCL 712A.19b(3)(j).
We recognize that respondent has argued that other evidence demonstrated her ability to achieve stability, a steady income, and a safe environment. Specifically, in September 2018, approximately one month after the children were removed, she moved into a home with Phelps, whom she meet at the Red Roof Inn in July 2018. She also asserts that she became gainfully employed as a caregiver for Phelps's mother. However, none of this evidence was presented during the statutory-grounds hearing. Evidence of this nature was presented for the first time at the best-interest hearing four months later. At no time did respondent move to reopen proofs after the conclusion of the statutory-grounds phase. In any event, even if the court had been made aware of respondent's new living arrangement during the combined hearing, it is unclear that this would have altered the outcome. As explained in greater detail below, evidence that respondent began cohabitating with a man she had only known for a month is somewhat less compelling than respondent suggests. Indeed, this evidence could be considered more indicative of respondent's impulsivity than her ability to achieve lasting, long-term stability.
Respondent also reiterates that petitioner failed to assist her in replacing her lost identification documents and obtaining a state identification card. It is not clear to us that petitioner was specifically obligated to do so. Moreover, respondent takes the position that petitioner created the conditions leading to the removal of the children by, implicitly, intentionally refusing to help her obtain identification documents. While petitioner could have done more, and perhaps it would have been better if petitioner did do more, we do not think the evidence supports any argument that petitioner acted in bad faith. Respondent also argues that termination was premature because she was not provided with reunification services, but reunification services are not required where termination is the agency's goal. In re Moss, 301 Mich App at 90-91; In re HRC, 286 Mich App at 463. Thus, MCR 3.977(E)(1) provides that reunification efforts are not required where "the original, or amended, petition contains a request for termination." Accordingly, when petitioner exercised its discretion and filed a petition seeking termination of respondent's parental rights at the initial disposition, and reunification was clearly not the goal, petitioner was not required to provide respondent with any reunification services.
In summary, the trial court did not clearly err in finding statutory grounds for termination established under MCL 712A.19b(3)(j). The trial court was therefore obligated to terminate respondent's parental rights unless doing so was not in the children's best interests.
VI. BEST INTERESTS
Respondent argues that termination of her parental rights was not in the children's best interests. We disagree.
When determining whether termination of parental rights is in a child's best interests, the court may consider numerous factors, including 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 Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). The court may also consider psychological evaluations, the child's age, and a parent's history. In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009).
Respondent contends that termination of her parental rights was not in her children's best interests because a strong bond existed between her and the children. The court acknowledged this bond, but it concluded that it was overshadowed by respondent's lack of stability, her continued drug use, and her untreated mental health issues. Kathy Spatafora, the clinical psychologist who evaluated respondent, opined that in light of respondent's instability, continued drug use, and untreated mental health issues, reunification would not be in the children's best interests. Spatafora acknowledged that respondent had made some recent progress, which Spatafora weighed heavily in respondent's favor. However, Spatafora nevertheless believed that in light of respondent's long history of instability, her prior terminations, the services previously offered, and respondent's continued difficulty exercising sound judgment, it would be highly premature to conclude that respondent could sustain her progress for long. Spatafora further opined that in light of the children's young ages, any bond between respondent and her children would be adversely affected during this period. Additionally, the evidence at the best-interests hearing showed that respondent had made some efforts to obtain mental health treatment, but she remained untreated, and instead she was continuing to use marijuana as a coping strategy. Although marijuana is now legal, we do not find it inappropriate for the trial court to be concerned that respondent was inexpertly self-medicating with a substance over which she had already demonstrated a long history of poor control.
As alluded to above, respondent claims to have achieved stability and permanency by moving in with her boyfriend, Phelps, and she was gainfully employed as a caregiver for her boyfriend's mother. To respondent's credit, the evidence seemingly indicates that Phelps has no criminal history and no drug use issues. The trial court reasonably worried that respondent's apparent stability was illusory, or at least not convincingly proven, because it was contingent upon her continued relationship with Phelps. It is somewhat concerning that respondent seemingly attached herself to Phelps after knowing him at the Red Roof Inn for a short time and just when she was being evicted. Respondent had not attained any independent stability. Furthermore, there was direct evidence that the relationship was not stable. The caseworker testified that respondent and Phelps had experienced a brief break-up that resulted in respondent moving to Hillsdale for a week. Respondent had also confided in the caseworker that Phelps was not particularly supportive of respondent during the child protective proceeding. Further, respondent was still married to her estranged husband and had yet to file divorce papers. Thus, there was ample support for the trial court's conclusion that respondent's professed stability was questionable.
The record clearly supported a finding that respondent had not attained the stability necessary to parent two very young children. By contrast, the children were thriving in their foster home. The children were placed together and the foster mother had expressed an interest in adopting both children. Although the children did not have any special needs, GLO had some medical and dental issues for which the foster mother ensured he was receiving proper treatment. When balancing the best-interest factors, a court may consider the advantages of a foster home over the parent's home and the possibility of adoption. In re Olive/Metts, 297 Mich App at 41-42. It is clearly apparent that GLO and KEC were both placed in a stable home and were progressing, and that this progress could continue as the foster parent had indicated a willingness to plan long term for the children.
Considering the foregoing, termination of respondent's parental rights was the best avenue by which these very young children would be afforded the greatest opportunity to achieve permanency and long-term stability. Accordingly, the trial court did not clearly err when it found that termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Michael J. Riordan
/s/ Amy Ronayne Krause