Opinion
No. 354392
02-18-2021
In re J. A. PATTON, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Montcalm Circuit Court Family Division
LC No. 2018-000840-NA Before: SWARTZLE, P.J., and MARKEY and TUKEL, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to her child, JAP, under MCL 712A.19b(3)(c)(i) and (ii), (g), and (j). We affirm in part, vacate in part, and remand for further proceedings related to the trial court's best-interests determination.
I. BACKGROUND
The Department of Health and Human Services (DHHS) filed a petition requesting temporary jurisdiction over JAP. The petition alleged that respondent and JAP's biological father were involved in a domestic-violence incident at their home which caused injury to JAP, that respondent was arrested for possession of methamphetamine, and that respondent had a significant criminal history. After the preliminary hearing, respondent pleaded no contest to the allegations in the petition. The trial court entered an order of adjudication and placed the child with his paternal aunt and uncle. The trial court subsequently entered an order of disposition requiring respondent to comply with a case-service plan, which mandated that respondent comply with and benefit from a psychological evaluation, a substance-abuse evaluation, parenting classes, supervised-parenting time, and random drug screens, as well as to obtain and maintain appropriate housing and employment.
After holding five review hearings, and observing that respondent had made very limited efforts to participate in her case-service plan, the trial court ordered petitioner to initiate proceedings to terminate respondent's parental rights to JAP. The DHHS filed a petition seeking to terminate respondent's parental rights to JAP, alleging that respondent had not completed or benefited from her case-service plan, that respondent had failed to rectify the concerns that brought JAP into protective care, and that termination of respondent's parental rights was in JAP's best interests.
At the evidentiary hearing on the petition to terminate respondent's parental rights, the DHHS caseworker testified that respondent had not completed any aspect of her case-service plan and had not made any progress on any of the issues that led to the adjudication. Respondent testified on her own behalf and admitted that, before securing appropriate housing a little over a month before the hearing, she lacked stable housing throughout the proceedings. Respondent also admitted that she had intentionally tested positive for methamphetamine, with the hope that her supervised-parenting time with the child would be terminated, because she wanted to travel and get her life together. Respondent also stated that she was not "quite in the position to have full custody" of JAP, and that she believed she had "a lot more growing to do and . . . a lot of learning left to do."
After closing arguments, the trial court held that petitioner had presented clear and convincing evidence of statutory grounds for terminating respondent's parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). In making its ruling, the trial court relied on evidence indicating that respondent "barely addressed, if at all, the issues that led to the removal of [JAP] and the barriers that were identified to reunification." The trial court also determined that it was in the child's best interests to terminate respondent's parental rights because JAP was young and required permanency and finality, and because respondent could not adequately care for him. The trial court therefore terminated respondent's parental rights to JAP.
Respondent now appeals.
II. ANALYSIS
A. STATUTORY GROUNDS
Respondent first argues that the trial court erred in finding that petitioner established by clear and convincing evidence that termination of her parental rights was proper under MCL 712A.19b(3)(c)(i) and (ii), (g), and (j).
A trial court may terminate a respondent's parental rights if one or more of the statutory grounds for termination have been proven by clear and convincing evidence. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). This Court reviews for clear error the trial court's decision that a ground for termination has been proven by clear and convincing evidence. Id. "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). In reviewing the trial court's findings of fact, this Court gives due regard to the special opportunity of the trial court to judge the credibility of witnesses. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005).
Termination of parental rights is proper under MCL 712A.19b(3)(j) when the petitioner establishes that "[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." A parent's "failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." In re White, 303 Mich App 701, 711; 846 NW2d 61 (2014). Under MCL 712A.19b(3)(j), harm can include either physical or emotional harm. In re Hudson, 294 Mich App at 268.
Here, respondent's substance abuse was one of the conditions that led to the adjudication. The evidence presented at the termination hearing, more than one year after the adjudication, established that respondent continued to struggle with substance abuse and did not regularly or meaningfully participate in substance-abuse programs, treatments, or counseling. Respondent tested positive on numerous drug screens and failed to complete others. She did not attend AA or NA meetings or counseling for which she was referred. Significantly, she tested positive for marijuana and methamphetamine at supervised-parenting time with JAP. At the termination hearing, respondent admitted that she had a significant problem with substance abuse. She also admitted that she intentionally tested positive for methamphetamine because she wanted her supervised-parenting time to be suspended so that she could "go up north" to get her life together. Moreover, the trial court found that respondent had only been employed once during the pendency of her case-service plan, and that was only for a week. Respondent also admitted that she lacked stable housing. The record unequivocally shows that respondent continued to abuse substances, did not complete individual counseling or parenting classes, and did not have a stable home or stable employment. Based on the record in this case, the trial court did not clearly err in finding that MCL 712A.19b(3)(j) was established by clear and convincing evidence.
Because the trial court need rely on only one statutory ground for termination, we need not address whether other statutory grounds for termination existed. In re Powers Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000).
B. BEST INTERESTS
Respondent next argues that even if statutory grounds for termination existed, the trial court erred because it did not explicitly address, in determining JAP's best interests, that he was in a relative placement.
"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). Whether termination of parental rights is in the best interest of the child must be proved by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews for clear error the trial court's ruling that termination is in the child's best interests. In re Hudson, 294 Mich App at 264.
The Michigan Supreme Court has explained that a child's placement with relatives is "an explicit factor to consider" in determining whether termination was in the child's best interests. In re Mason, 486 Mich at 164. The Court reaffirmed the requirement of explicit consideration of placement with relatives at the time of termination in In re Mays, 490 Mich 993; 807 NW2d 307 (2012). In Mays, the Court stated that the trial court's failure to consider the children's placement with relatives at the time of the termination resulted in a factual record "inadequate to make a best interests determination." Id. at 994. In In re Olive/Metts, 297 Mich App at 43, this Court also held that a "trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal."
Here, JAP was placed with his relatives—his paternal aunt and uncle. MCL 712A.13a(j). There is no evidence that the trial court considered JAP's placement with relatives when considering his best interests. During its analysis of the child's best interests, the trial court ordered that JAP remain "in the placement with the department for care and supervision," but made no reference to the relative placement. Therefore, the factual record is inadequate for purposes of the best-interests determination, In re Mays, 490 Mich at 994, and we are constrained to remand for consideration by the trial court of the relative placement in the context of the best-interests analysis.
To be clear, we take no position on whether consideration of the bare fact of relative placement should have any material impact on the trial court's ultimate conclusion on the best interests of JAP.
We affirm the trial court's determination that statutory grounds existed to terminate respondent's parental rights under MCL 712A.19b(3)(j). We vacate the trial court's order terminating respondent's parental rights and remand for a new best-interests determination. Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Jonathan Tukel
ORDER
Brock A. Swartzle Presiding Judge Jane E. Markey Jonathan Tukel Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 35 days of the Clerk's certification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, the court is to make findings with respect to the relative placement in the context of its overall best-interests analysis. The proceedings on remand are limited to the best-interests analysis, as explained in more detail in the accompanying opinion.
The parties shall promptly file with this Court a copy of all papers filed on remand. The trial court shall complete the proceedings within 63 days after the issuance of this order. Within seven days after entry, respondent shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.
/s/_________
Presiding Judge
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
February 18, 2021
Date
/s/_________
Chief Clerk