Opinion
No. 348213
09-10-2019
In re K. M. PANEK, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Mecosta Circuit Court Family Division
LC No. 16-006344-NA Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ. PER CURIAM.
The circuit court terminated respondent-father's parental rights to his 4½-year-old daughter, KP2, based on his methamphetamine use and inability to complete services due to repeated periods of incarceration during the proceedings. Respondent challenges only the circuit court's determination that termination was in KP2's best interests. This was a difficult case that resulted in differential treatment of siblings living in the same relative placement. However, the circuit court was well aware of the practical and emotional challenges presented by this situation. The court's decision to terminate respondent's rights to KP2 was well thought out and will assist the family in moving in the right direction. We affirm.
The court also terminated the parental rights of the child's mother, SS. She does not appeal that ruling. --------
I. BACKGROUND
Respondent and his ex-girlfriend, SS, have a long history with Child Protective Services. They share two daughters and had several CPS complaints raised against them over the years. KP1 was born on April 25, 2009. She was removed from her parents' care and placed in a guardianship with her maternal grandparents in November 2013, because SS was abusing substances and respondent did not have a home for himself and the child. SS gave birth to KP2 in September 2014, meaning that she became pregnant around the time that KP1 was removed from her care. SS participated in services and it appears that she and respondent shared joint custody of the baby. In July 2016, CPS substantiated claims against SS for improperly supervising young KP2 while using drugs. In a family court proceeding, respondent received full custody of KP2 and she moved in with him and his girlfriend, Sarah Baker. Respondent petitioned to terminate KP1's guardianship so he could take full custody of her as well. Someone then reported to CPS that respondent had been using methamphetamines. CPS investigated but could not substantiate the allegations. Ultimately, the court denied the petition to terminate KP1's guardianship, but did make respondent's custody superior to SS's.
Baker had a history of substance abuse and lost custody of her two children in 2012 as a result. Due to suspected ongoing drug activity in the home, law enforcement conducted a raid in October 2016. They uncovered evidence of meth use, but no evidence that meth was manufactured in the home. CPS intervened and respondent ceded custody of KP2 to her maternal grandparents. Shortly thereafter he tested positive for meth, ephedrine, and amphetamines.
Over the next two years, respondent did very little to comply with his services agreement. Respondent was incarcerated in county jail or prison for drug-related charges from December 28, 2016 through July 26, 2017, September 27, 2017 through June 21, 2018, and August 29, 2018 through February 12, 2019. He pleaded to jurisdiction on the ground that his incarceration left him unable to provide care and custody for KP2. As a result of his repeated incarcerations and failure to follow through, respondent never submitted to a court-ordered psychological evaluation or participated in a substance abuse treatment program. Most importantly, respondent's incarcerations led to long absences from his children.
Respondent's parenting time with KP1 and KP2 was supervised during this proceeding by Family Supportive Services of Michigan. Between October 23 and December 28, 2016, respondent missed eight scheduled sessions and attended six, although he was late for all. During his two-month stint of freedom in late summer of 2017, respondent attended nine visits and missed four. And in the summer of 2018, respondent attended three visits and missed one. The parenting-time supervisor and the caseworker both testified that the children loved respondent, were strongly bonded with him, and were happy to see him. Respondent played with the children and interacted well with them. Due to the short intervals when respondent was able to attend visits, however, respondent never progressed beyond superficial parenting or being the "fun dad." He could not keep up with the children's development and did not know what happened in their day-to-day lives.
After more than two years and a two-day termination hearing, the circuit court terminated respondent's parental rights to KP2 under MCL 712A.19b(3)(c)(i) and (j).
II. ANALYSIS
Respondent does not contest that statutory factors supported the termination of his parental rights. Instead he contends that termination of his parental rights was not in KP2's best interests.
"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). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The court should weigh all the evidence available to it in determining the child's best interests. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). Relevant factors 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." In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "The trial court may also consider . . . 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). A child's placement with relatives weighs against termination, but is not determinative. Olive/Metts, 297 Mich App at 43. And the court "has a duty to decide the best interests of each child individually." Id. at 42.
This case is unusual because termination of the parents' rights to KP2 has left her differently situated than KP1, who lives in the same household. KP2 now is left without a legal relationship with her biological parents and likely she will be adopted by her maternal grandparents. KP1, on the other hand, still has a legal relationship with her parents and the parents have a legal right to visits with KP1. The circuit court carefully considered this irregularity and nevertheless found termination to be in KP2's best interests.
During the testimony of Jessica Deverman, who supervised the parenting-time sessions, the court inquired, "Would terminating the parents' rights . . . as to [KP2] only; would that be detrimental or would that" be seen by the child as preference for KP1. Deverman testified that termination was still "preferred" in this case, noting that KP2 was "the younger of the two and she deserves a shot . . . at permanency" and "not having to revisit this cycle of trauma." The court continued, "But do you think that it is problematic if the other child, [KP1], still has two parents and a guardian as opposed to [KP2] . . . saying that there was a termination as to [KP2] only; would that be detrimental for [KP2] to see that her sister still has two parents and she then doesn't have them." Deverman conceded, "I think that it probably will be a problem. There will some [sic] . . . minor problematic things there. It could be anticipated." But, Deverman testified, she believed the long-term benefits of permanency "far outweigh[ed] the complications that could arise with the girls having different legal outcomes." She noted that the children had always been treated differently, with KP2 remaining with her parents while KP1 was in a guardianship. Deverman clarified that it would not be preferable to place both girls in a guardianship simply to treat them the same:
The pressure that the guardianship has put on the placement and the whole family unit has been extreme for many, many years. If this continues with [KP1] remaining in a guardianship and [KP2] say at [sic] progresses to termination, the guardianship situation will dissolve when [KP1] turns 18, but then the family would be subject to that for how much longer because [KP2] is that much younger. And so, in my view, just this ever guardianship, parents could come back, this whole thing could start again, visitations, this process could start again. We're setting this whole family unit up to be in that predicament for that much longer[.]Deverman's "preferred outcome for both children" was termination of both parents' rights.
Amy Lilienthal was the primary caseworker throughout these proceedings and was involved in KP1's guardianship case as well. Lilienthal opined that termination of the parents' rights was in KP2's best interests so that she could achieve permanency with her grandparents. When pressed about the idea of retaining the parents' rights as the children were in a relative placement, Lilienthal stated:
The only other option that is presented at this time would be guardianship and you haven't asked that question, but I think that's what you're referring to. But, we've already proven that guardianship doesn't work for this family. They . . . had a guardianship for five years with their older daughter and they have yet to get [KP1] back out of that guardianship, so there's no reason to believe that the Department [sic] in any soon length of time. [KP1's] nine. Her whole life has been about ups and downs and not knowing who, what and who's where and where am I going to live and is dad in jail? Is mom in jail? Is what's [sic] going on? So, I mean, outside of termination of parental rights, there's no other way to achieve permanency that can guarantee these kids to have the stability and . . . emotional safety they deserve. . . .
The children's grandmother and guardian also took the stand at the termination hearing. She testified that she wished to plan permanently for both girls. She and her husband had retained their own counsel and viewed the current termination proceeding as the first step in a longer process of adopting both children. In the event the court terminated the parents' rights to KP2, the children's grandparents intended to seek dissolution of their guardianship over KP1, termination of the parents' rights to her, and adoption of KP1 as well. But because of the difficulties throughout her five-year guardianship of KP1, grandmother was not willing to take a permanent guardianship over a second child.
The court addressed this issue head on. The court acknowledged that by terminating the parents' rights to KP2, the court placed the sisters in different situations. But "this does not overcome the fact that [KP2] would be better off being adopted," the court reasoned. And the court found "no acceptable alternatives to [terminating] parental rights in this case," despite that KP2 was in a relative placement with her sister. The court noted the grandmother's unwillingness to accept a guardianship "due to the other issues she's had with the parents during the guardianship" of KP1. The court asserted:
It's not preferable for both kids to be in a guardianship. Guardianship pressure has been extreme for years in that other case. Guardianship or otherwise with [KP2] is setting [ up ] the whole family unit for issues again. Its best - - the best outcome is for both - - for both children, although, the Court's only considering one child here, [KP2], is termination of parental rights.
The circuit court was able to observe the action in this case first hand. It was in a better position than this Court to predict the trajectory of KP1's case. The caseworkers, guardian, and court were in agreement that termination of parental rights would be in both children's best interests and so it appears that the children will likely be on equal footing in the near future.
Respondent further contends that the circuit court should have given greater weight to the strong parent-child bond he shared with KP2. However, this Court has repeatedly noted that the parent-child bond is only one of many factors a court must take into consideration. See, e.g., White, 303 Mich App at 714. The circuit court acknowledged the bond between KP2 and respondent and their love for each other, but determined that termination was still in KP2's best interest. Ultimately, respondent has been in and out of prison and jail for KP2's entire life. During these proceedings, respondent was free and able to visit with his children only for short stints of time. Although KP2 was excited to see her father, she also exhibited signs of trauma during these periods. KP2 reverted developmentally, was prone to tantrums, and experienced trouble at bedtime when respondent was able to exercise parenting time. We appreciate the love that respondent has for his daughter, but we discern no ground to interfere with the lower court's judgment in this regard.
Respondent contends that his substance abuse history should not be weighed in favor of termination. "Substance abuse is an illness and should not be considered a moral issue," respondent insists, especially as he is willing to rely on the assistance of family members to care for his children. Respondent analogizes his substance abuse issues with cancer and argues that a court would not penalize a parent suffering from cancer who relied on family members to provide primary care and custody. However, respondent's substance abuse rendered him unable to parent his children even by proxy. Respondent was repeatedly absent from his children's lives because he was incarcerated on drug-related charges. Respondent and the children had to become reacquainted every time he reappeared in their lives. And respondent never pursued and followed through with substance abuse treatment. Indeed, three months after the termination hearing and days before the court issued its termination decision, respondent tested positive for methamphetamine and amphetamine. Respondent cannot claim that his disease should not be weighed against him if he is unwilling to seek treatment.
Respondent challenges the circuit court's finding that he could not provide for the basic needs of his children financially. He maintains that he has been consistently employed his entire adult life. Yet, respondent does not explain his failure to provide proof of employment upon request to the caseworkers.
Respondent also takes issue with the circuit court's finding that he did not have the capacity to understand how his failure to overcome the barriers to reunification affected the child, making him mentally unfit to parent. Deverman and Lilienthal both testified that respondent did not understand the impact of his substance abuse on KP2. Even at the termination hearing, respondent testified that he no longer had a substance abuse problem, but conceded that he would continue counseling to regain custody. The only harm he perceived to KP2 from his substance abuse was that it led to incarceration and his absence for periods of time. Respondent had so little insight into his mental health that he repeatedly cancelled psychological evaluations during his periods of release and never completed that service in order to start mental health treatment.
Overall, the circuit court considered KP2's best interests in great detail. The court acknowledged the factors both weighing in favor of and against the continued parent-child relationship but ultimately determined that the evidence preponderated in favor of termination. We will not interfere with the circuit court's considered opinion.
We affirm.
/s/ Brock A. Swartzle
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly