Opinion
No. 349542
02-27-2020
In re C. J. PENNINGTON, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 14-515657-NA Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ. PER CURIAM.
Respondent, mother, appeals as of right the order terminating her parental rights to her child, CP, under MCL 712A.19b(3)(b)(i), (i), (j), and (k)(iii). We affirm.
I. INTRODUCTION
Petitioner, the Department of Health and Human Services (DHHS), filed a petition to terminate respondent's parental rights after CP tested positive at birth for marijuana, opiates, and cocaine. The petition noted that respondent's parental rights to her other two children, AP and ZP, were previously terminated because she failed to complete or benefit from her parent-agency agreement and failed to rectify her substance-abuse problem. After a bench trial, the trial court terminated respondent's parental rights to CP because respondent failed to rectify the conditions which led to her previous termination of rights, continued to have a significant substance-abuse problem, and failed to provide proper care for CP. At a later best-interests hearing, the trial court found that the termination of respondent's parental rights was in the best interest of CP because respondent's substance-abuse problem persisted and she could not provide stability or permanence for CP.
This Court affirmed the termination of respondent's parental rights to AP and ZP. In re Pennington, unpublished per curiam opinion of the Court of Appeals, issued October 18, 2016 (Docket Nos. 331727 and 331728). --------
II. STATUTORY GROUNDS
Respondent argues that the trial court erred in finding that statutory grounds existed to terminate her parental rights pursuant to MCL 712A.19b(3)(b)(i), (i), (j), and (k)(iii). We disagree.
This Court reviews the trial court's factual findings regarding statutory grounds for termination of parental rights for clear error. MCR 3.977(K); In re Gonzales/Martinez, 310 Mich App 426, 430; 871 NW2d 868 (2015). A finding is clearly erroneous if this Court is "left with the definite and firm conviction that a mistake has been made." Id. at 430-431 (quotation marks and citations omitted). The party seeking termination bears the burden of proving by clear and convincing evidence the existence of at least one statutory ground for termination. MCR 3.977(A)(3); In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013).
Termination of parental rights is appropriate pursuant to MCL 712A.19b(3)(b)(i) when:
(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
[(i)] The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
With respect to this subsection, respondent argues that her drug use did not cause CP physical injury or abuse. Respondent admitted, however, that she used marijuana and cocaine while she was pregnant with CP. CP was born with cocaine, opiates, and marijuana in his system. CP suffered withdrawal symptoms at birth and had to be administered morphine to address his withdrawal symptoms. Respondent also admitted that she purposefully did not obtain prenatal care to avoid contact with Child Protective Services (CPS). As such, respondent's acts caused physical injuries to CP.
There was also a reasonable likelihood that CP would suffer injury or abuse in the foreseeable future if placed with respondent. Respondent failed to demonstrate that she overcame her substance-abuse problem even after her rights to AP and ZP were terminated. Respondent admitted that she continued to use drugs while pregnant with CP, and respondent tested positive for cocaine and fentanyl at parenting-time visits. Respondent also stopped attending parenting time on February 14, 2019, despite this pending termination case, and failed to appear at two of the termination hearings.
Moreover, MCL 712A.19b(3)(b)(i) also concerns the parent's physical abuse of a sibling of the child. The trial court was presented with evidence that both AP and ZP tested positive for opiates and marijuana at birth and were similarly brought into care soon after their births. Respondent failed to complete or benefit from the parent-agency agreement with respect to these two children, and her parental rights to AP and ZP were terminated. "Evidence of how a parent treats one child is evidence of how he or she may treat the other children." In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011). On the basis of the evidence presented, the trial court did not err by finding that clear and convincing evidence was presented to terminate respondent's parental rights to CP under MCL 712A.19b(3)(b)(i).
Respondent also argues that clear and convincing evidence was not presented to terminate her parental rights pursuant to MCL 712A.19b(3)(i). A petitioner need only establish one statutory ground by clear and convincing evidence to terminate respondent's parental rights. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Nevertheless, clear and convincing evidence was also presented to terminate respondent's parental rights under MCL 712A.19b(3)(i).
Termination of parental rights is appropriate under MCL 712A.19b(3)(i) if "[p]arental rights to 1 or more siblings of the child have been terminated because of 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." "[T]he clear language of th[is] statute requires the court to determine the success of prior rehabilitative efforts as of the date of the termination hearing." In re Gach, 315 Mich App 83, 94; 889 NW2d 707 (2016).
It is undisputed that respondent's parental rights to AP and ZP were previously terminated. AP and ZP were brought into care because of respondent's substance-abuse problem. Respondent's parental rights were terminated, in large part, because of her failure to rectify her substance-abuse problem and her failure to complete or benefit from her parent-agency agreement. After respondent's rights to AP and ZP were terminated, respondent continued to use drugs while pregnant with CP, CP was born testing positive for cocaine, opiates, and marijuana, and respondent tested positive for cocaine and fentanyl twice after CP was in care. Therefore, the trial court did not err in finding that prior rehabilitative efforts were unsuccessful and that respondent failed to rectify the conditions which led to the prior termination of her parental rights.
Clear and convincing evidence was also presented to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(j). Under MCL 712A.19b(3)(j), a trial court may terminate parental rights 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."
While respondent obtained housing and employment, attended a 30-day outpatient substance-abuse treatment program, and was attending narcotics anonymous, her substance-abuse problems persisted. Respondent admitted that she had been battling this problem for 12 years and the evidence demonstrated that she continued to struggle with this problem at the time of the termination hearing. Moreover, the only time CP was in respondent's care was when she was pregnant with CP. While pregnant with CP, respondent intentionally did not obtain prenatal care and continued to use drugs. Based on respondent's previous history, continued substance abuse after her rights to AP and ZP were terminated, and her conduct while pregnant with CP, the trial court did not err by finding that respondent's substance-abuse problem persisted and that her problem posed a risk to CP's safety.
Finally, clear and convincing evidence was presented to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(k)(iii). Termination of parental rights is appropriate under MCL 712A.19b(3)(k)(iii) if
(k) The parent abused the child or a sibling of the child, the abuse included 1 or more of the following, and there is a reasonable likelihood that the child will be harmed if returned to the care of the parent:
MCL 712A.19b(3)(k)(iii) does not define "severe child abuse." However, "child abuse" is defined under the Michigan Child Protection Law as "harm or threatened harm to a child's health or welfare that occurs through nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment, by a parent, a legal guardian, or any other person responsible for the child's health or welfare . . ." MCL 722.622(g). "Severe" is commonly defined, in relevant part, as "very painful or harmful." Merriam-Webster's Collegiate Dictionary (11th ed.)
* * *
(iii) Battering, torture, or other severe physical abuse.
The evidence presented demonstrates that CP experienced withdrawal symptoms after birth because of respondent's use of cocaine, opiates, and marijuana during her pregnancy. CP had to remain in the hospital for multiple days to be given morphine for his withdrawal symptoms. There is no question that being born addicted to drugs was very harmful to CP. There was thus sufficient evidence to support the trial court's finding that termination of respondent's parental rights under MCL 712A.19b(3)(k)(iii) was appropriate.
Respondent also contends that the trial court did not provide her with appropriate services in this matter and further "violated the Constitution by improperly speculating that there would be future abuse to [CP] if [respondent's] rights were not terminated." However, MCL 712A.19a(2)(c) states that a "[r]easonable effort to reunify the child and family must be made in all cases except if . . . [t]he parent has had rights to the child's siblings involuntarily terminated and the parent has failed to rectify the conditions that led to that termination of parental rights." Because respondent's rights to AP and ZP were previously involuntarily terminated due in large part to respondent's substance abuse issues and respondent had not rectified that issue, the trial court and DHHS did not have an obligation to provide respondent with services or any other reasonable effort to reunify respondent with the child.
III. BEST-INTEREST DETERMINATION
Respondent lastly argues that the trial court erred when it found that the termination of her parental rights was in the best interest of CP. This Court reviews a trial court's decision regarding a child's best interests for clear error. MCR 3.977(K); In re Shadler, 315 Mich App 406, 408; 890 NW2d 676 (2016) (quotation marks and citation omitted).
If the court determines, by clear and convincing evidence, that one or more statutory ground exists under MCL 712A.19b(3), and that termination of parental rights is in the child's best interests, the court must order termination of parental rights. In re Ferranti, 504 Mich 1, 16; 934 NW2d 610 (2019); MCL 712A.19b(5). The petitioner bears the burden to establish by a preponderance of the evidence that termination is in the best interest of the child. In re Gonzales/Martinez, 310 Mich App at 434, citing MCL 712A.19b(5) and In re Moss, 301 Mich App at 90. "In deciding whether termination is in the child's best interest, the court may consider 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's best-interest analysis focused on respondent's ability to provide permanency and stability for CP. The trial court noted that while respondent made progress with housing and employment, demonstrated affection for CP, and provided for CP during parenting-time visits, respondent's substance-abuse problem continued to persist. Respondent admitted to using drugs while pregnant with CP, CP was born testing positive for opiates, cocaine, and marijuana, and respondent tested positive for cocaine and fentanyl at two parenting-time visits with CP. The trial judge further stated, "I don't get the impression through the case history and through, you know, even just history regarding some of the positive drug screens that mom, if given more time is going to be in a position to provide long-term permanency for [CP]."
Throughout this case, then, respondent failed to demonstrate that she would be able to provide stability for CP. She failed to attend parenting time during the two months before her termination hearing and failed to attend all of the evidentiary and termination hearings. Respondent's substance-abuse problem persisted and she continued to use drugs throughout this proceeding. Moreover, respondent has not cared for any of her children. CP was less than a year old at the time of this preceding, and thus, required significant care and support. There was no indication or evidence that respondent was able to provide this. The trial court thus did not clearly err in finding that termination of respondent's parental rights was in the best interest of CP.
Affirmed.
/s/ James Robert Redford
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto