Opinion
No. 348331 No. 348332
09-19-2019
In re OSENBAUGH, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2017-000369-NA Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ. PER CURIAM.
In these consolidated appeals, respondent-father and respondent-mother appeal as of right the trial court order terminating their parental rights to their minor children, TO, KO, CO, and EO, under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Because we conclude that the trial court did not err, we affirm.
I. BASIC FACTS
In August 2017, the Department of Health and Human Services (DHHS) submitted a petition to the trial court alleging that EO was born with methamphetamines and amphetamines in his system, that respondent-father and respondent-mother regularly used methamphetamines, and that respondent-mother had mental-health issues that had resulted in suicidal thoughts and self-harming behavior. Initially, the children were not removed from respondents' care. The court, however, ordered that respondents had to allow service providers access to their home; submit to drug screens and take all medications prescribed; participate in recommended services, including counseling; sign necessary medical releases; and leave the home in the event that they refused, missed, or tested positive at a drug screen. Approximately one month later, the children were removed from respondents' care because (1) respondent-father declined to leave the home after testing positive for methamphetamine, amphetamine, and marijuana; and (2) respondents both missed drug screens, failed to attend counseling, and denied service providers access to their home. Subsequently, both respondents pleaded to jurisdiction.
Although services were provided—including supervised parenting time, drug screens, gas cards and bus tokens, referrals for psychological evaluations and substance abuse assessments, parenting classes, and referrals for counseling—respondents made no progress on addressing their substance abuse issues, housing issues, or parenting issues. Accordingly, the DHHS filed an amended petition seeking termination of their parental rights.
The record reflects that throughout the case, respondents admitted to ongoing drug use, continued to miss drug screens, and repeatedly tested positive for methamphetamine and other substances. They declined to fully participate in substance abuse treatments, and, on occasion they would be under the influence while visiting the children. In addition, although respondent-mother enrolled in a two-week inpatient drug rehabilitation program, she only stayed for four days before proclaiming "that was enough" and "was what she needed to stay clean." She then tested positive for methamphetamine the day after she left the rehabilitation program. At the termination hearing, respondent-mother testified that one of her drug screens was a false positive caused by her use of a nasal spray or a prescribed medication, but she admitted that she used methamphetamine as recently as January 11, 2019. For his part, at the termination hearing, respondent-father admitted that he and respondent-mother had a drug problem, and he noted that he had not used methamphetamine in over a month.
Respondents were provided with parenting time twice a week. Generally, the visits went well. Respondent-mother was very loving with the children and, when not too far under the influence of substances, respondent-father was always engaged with them. Yet, respondents had to be reminded not to discuss the case with the children, and both parents missed multiple parenting time visits. In June 2018, their parenting time was suspended because of their drug use. The court directed that parenting time would be reinstated once they had three consecutive clean drug screens, but even after parenting time was restored in October 2018, respondents continued to test positive for illegal substances.
Respondents also failed to complete parenting classes, and the DHHS had concerns with their parenting and with their deceptive behavior when it came to the children. For example, in May 2018, TO ran away from his placement after being told he would be moving to a foster-care home. Respondents were not concerned; respondent-father stated that TO had been taught how to make money so he would be alright. Eventually, TO was discovered at a campground with respondents and a maternal aunt and uncle, and the DHHS determined that he had been staying with his maternal grandmother the duration of the period he was missing. Furthermore, respondent-mother gave TO a cellular telephone and regularly communicated with him despite being aware that all communication and visits between her and the children were to be supervised. After TO gave the cellular telephone to a caseworker, respondent-mother became furious and screamed at him loud enough to make him cry and respondent-father scolded him for giving up the telephone. Text messages from respondents and other family members included messages calling TO names, encouraging him to run away again and bring KO, requesting that he delete all conversations so that they would not get caught, and requesting him to take a gaming console from his placement to give to respondent-mother. In addition, the maternal grandmother told TO to act "as rude and nasty" as he could to "[t]ry and get moved again" because the DHHS would run out of placements "sooner or later" and the children would then be placed with her. She also told TO to tell his guardian ad litem that he was "tired of this crap" and wanted to go with his grandmother. She told him to "be adamant about it." The messages from TO included statements that he and KO did not want to run away and were scared. Respondent-mother responded by telling them that she would hide them.
Respondents were unable to maintain housing. They were evicted from their home shortly after the children were removed from their care. Thereafter, they primarily lived in motels. To aid respondents in obtaining housing, their caseworker provided them with a list of apartments in the community that would take tenants who had previously been evicted, offered them financial assistance with the first and last month's rent, and offered to write letters to potential landlords explaining that respondents would be receiving assistance from the DHHS. Respondents did not take advantage of any of the offered aid. After the first day of the termination hearing, respondents were able to obtain housing that was appropriate for the children, but the DHHS remained concerned because the maternal grandmother had signed the lease and there was no indication that respondents would be able to maintain it.
Following the termination hearing, the trial court found statutory grounds to terminate respondents' parental rights and found that termination of their parental rights was in the children's best interests.
II. STATUTORY GROUNDS
A. STANDARD OF REVIEW
In Docket No. 348332, respondent-father challenges the trial court's determination that there were statutory grounds to terminate his parental rights. "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). The trial court's termination determinations are reviewed for clear error. Id. "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." In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2012) (quotation marks and citation omitted).
Respondent-mother concedes that the trial court did not clearly err by finding statutory grounds to terminate her parental rights.
B. ANALYSIS
Respondent-father argues that the trial court clearly erred by terminating his parental rights because he "simply needed more time." He contends that throughout the case, it was acknowledged that he had difficulty maintaining a fulltime job while also trying to participate in services. He asserts that, rather than attempting to work with him and provide him additional time to benefit from services, the trial court "rushed this case" and failed to give him credit for his "extremely impressive work ethic."
However, the record reflects that the court gave respondent-father a significant period of time to benefit from services; he pleaded to jurisdiction in October 2017 and his parental rights were not terminated until March 2019. During that time, respondent-father made no progress in addressing his addiction to methamphetamine. He continually missed drug screens and tested positive for methamphetamines, amphetamines, and marijuana on multiple occasions. He admitted to using methamphetamine and admitted that he had a substance abuse problem, but he did not take the requisite steps to address his problem.
The court terminated respondent-father's parental rights under MCL 712A.19b(3)(c)(i). Termination is proper under subdivision (c)(i) if the court finds by clear and convincing evidence:
(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:Here, the record plainly reflects that more than 182 days have elapsed since the initial dispositional order. Further, the primary condition that led to adjudication—respondents' substance abuse—continues to exist. Respondent-father's drug-problem is admittedly ongoing and untreated. He has not submitted to a substance abuse assessment, undergone substance-abuse counseling, or managed to maintain a significant period of sobriety. Therefore, as respondent-father has not shown any progress in addressing his substance abuse issues despite the fact that his children have been in care for over 17 months, there is nothing on this record to suggest that the condition will be rectified within a reasonable time considering the ages of his children, which range from 15 years old to just over 1 year old. The trial court did not clearly err in terminating respondent-father's parental rights under MCL 712A.19b(3)(c)(i).
(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.
Because termination is proper under subdivision (c)(i), we need not address whether the trial court erred by finding termination proper under MCL 712A.19b(3)(c)(ii), (g), and (j). --------
III. BEST INTERESTS
A. STANDARD OF REVIEW
In Docket No. 348332, respondent-father argues that the trial court erred by finding that termination of his parental rights was in the children's best interests. Likewise, in Docket No. 348331, respondent-mother argues that the trial court erred by finding that termination of her parental rights was in the children's best interests. In order to terminate a parent's parental rights, the court must find by a preponderance of the evidence that termination of the parent's parental rights is in the child's best interests. In re Moss, 301 Mich App at 90. We review for clear error a court's finding that termination is in the child's best interest. In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009).
B. ANALYSIS
Respondent-father asserts that the trial court erred by terminating his parental rights because the trial court did not consider the children's bond to respondent-father and their family. He directs this Court to testimony showing that he was bonded with the children and that the children all wanted to be returned to respondent-father's care. He also notes that he was able to provide the children with a home that met community standards and that the children would be "devastated" if they were permanently separated from respondents.
Similarly, respondent-mother contends that this is a "remarkable" case because at the time the case started respondents were both employed, had a 14 year old child, and during that child's life they had no criminal history or child protective services history. She emphasizes the testimony throughout the case that shows that the children have a strong bond with her and would be "devastated" if respondents' parental rights were terminated, and she points out that when the termination order was entered she had suitable housing for the children. Respondent-mother notes that she has been abusing methamphetamine since she was 12 years old, which suggests that she will need "additional time to address" her substance abuse problem. She also contends that the children have been traumatized by their "many placements and separation" which could be "simply resolved" by placing the children with their maternal grandmother.
At the outset, the trial court found that placement with the maternal grandmother was not appropriate given the grandmother's documented role in encouraging the children to misbehave while in foster care and her role in hiding TO in her home after he ran away from a placement. Therefore, on this record, respondent-mother's suggestion that the children could be safely placed with their grandmother while she seeks substance-abuse treatment is not actually feasible.
In addition, although the existence of a bond between a child and a parent can weigh against a finding that termination is in the child's best interests, the existence of such a bond is only one factor that the trial court may consider. In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012). Other factors that the court may consider include the parent's parenting ability, the children's need for permanence, stability, and finality, id. at 41-42, and the parent's compliance with their case service plan, the visitation history, and the children's wellbeing while in care, In re White, 303 Mich App 701, 714; 846 NW2d 61 (2013).
Here, the trial court's best-interests determination was rooted in the children's need for permanence and stability. They had been in care for over 17 months. During that period, respondents' compliance with the case service plan was abysmal. They did not complete any services, declined services aimed at addressing the barriers to reunification (including their housing and substance abuse issues), and they repeatedly tested positive for methamphetamine and other substances. With regard to parenting time, although the visits were generally positive, the record also reflects that respondents missed numerous visits, attended some visits while under the influence of drugs, and talked about the case with the children despite being told not to do so. They also contributed directly to the children's trauma at their removal by encouraging the children to run away and be difficult at their placements. And, when TO did run away, they kept his whereabouts a secret from the DHHS workers who were attempting to locate him. The older two children, in addition to expressing a desire to return home were frustrated, sad, and angry with respondents for not obtaining a home or addressing their substance abuse so that the children could return. Further, the younger children were "blossoming" in their foster care placement, and it was a possibility that all four children could be adopted by the same family. Accordingly, on this record, the trial court did not clearly err by terminating respondents' parental rights.
Affirmed.
/s/ Brock A. Swartzle
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly