Opinion
No. 333843
04-25-2017
In re PETTAWAY, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 14-516680-NA Before: MURPHY, P.J., and MURRAY and M. J. KELLY, JJ. PER CURIAM.
Following an ongoing relationship with Child Protective Services (CPS), the trial court terminated respondent's parental rights under MCL 712A.19b(3)(b)(i) (parent's act caused physical injury to children), (j) (reasonable likelihood that children will be harmed if returned to parent), and (k)(iii) (parent abused children which included battering, torture, or other severe physical abuse), finding that it was in the best interests of respondent's three children to do so. Respondent appeals as of right. We affirm.
I. BASIC FACTS AND PROCEEDINGS
As early as 2013, CPS was concerned with respondent physically abusing his children, and the agency offered respondent counseling services, which he completed. CPS then received a complaint in March 2014, and the youngest child, M3, disclosed that respondent had "whooped" her after she stole candy from a store and that during the whipping he accidently hit her in the face with a belt. Respondent admitted that he whipped M3 for lying and stealing, and he admitted that he later slapped her in the face for misbehaving. Later in 2014, CPS received another complaint, and, during an investigation, respondent's middle child, M2, disclosed that respondent whipped her with a belt when she misbehaved. Following these allegations, the children were removed from their father's care. However, respondent fully engaged in and completed services, including individual and family counseling, visitation, and parenting classes. The children were returned to his care in May 2015.
On December 17, 2015, a new petition was filed alleging that the children had continued to experience physical abuse. A forensic interviewer noted that M2 came to the interview with a cast on each of her arms and explained that her injuries occurred when she put her arms up to block one of the whippings and that respondent knew about her injuries but did not provide any medical treatment. A discharge report indicated that M2 had fractured her left ulna and a bone in her right hand. M2 stated that respondent had whipped her more than once, that he whipped her all over her body, including her buttocks, that sometimes the whippings caused her to bleed, and that the children had to do squats after they were whipped.
M3 also stated that respondent gave her whippings that left bruises and marks on her body. She said that respondent whipped her with a wooden stick and a piece of a fan, that he whipped her all over her body, including her buttocks, arms, and legs, and that one time she had a mark on her back after a whipping and then respondent made her do squats; while doing the squats her back started itching so she moved around against the wall, causing her back to bleed. M3 also explained that on more than one occasion respondent put her in a dog cage and covered the cage with a blanket and, although he would bring her food, her siblings were told that they would get whipped if they talked to her. M3 also said that respondent would place his knee on her back to hold her down while whipping her and that respondent once slapped her in the face, causing a bruise. M3 said that she was scared of respondent and did not want to live with him.
M1 testified that respondent whipped him on his buttocks with a belt and that sometimes the whippings caused him to bleed. He explained that he would lie down on his stomach during the whippings and that he had his underpants on but otherwise had to pull his pants down. M1 also testified that once or twice respondent made him hold M2 down while respondent whipped her. M1 also explained that respondent made him do squats with a weight, usually after a whipping, and that one time the weight was too heavy and when he asked if he could lie down, respondent told him to put his arms up and then he punched him in the stomach. Respondent was hospitalized with an arm injury that occurred when he moved his arm over his buttocks during a whipping. According to discharge paperwork, M1 was diagnosed with cellulitis as a result of this injury. M1 testified that he would be afraid of respondent if they went back to live with him.
The court found that statutory grounds existed to terminate respondent's parental rights. It then held a best interest hearing. At the hearing, there was testimony establishing that the children were bonded with defendant but that there was a strong bond between the children and their paternal grandfather and step-grandmother, with whom the children were placed and who were willing to adopt the children. The court noted that the physical abuse allegations seemed to be increasing, and that while respondent was capable of completing services, he had not benefitted from them. The trial court found that terminating respondent's parental rights was in the children's best interests. It observed that respondent's behavior had escalated into abuse so severe that his children had suffered broken bones and that putting M3 in a cage would cause her relationship with respondent to be permanently scarred. The court noted the potential adoption and concluded that the children's stability in their grandfather's home was important.
II. REASONABLE EFFORTS
Respondent first argues that petitioner did not make reasonable efforts to reunite respondent with his children. We conclude that no efforts were required.
Generally, when children are removed from their parents' home, "the petitioner is required to make reasonable efforts to rectify the conditions that caused the . . . removal by adopting a service plan." In re HRC, 286 Mich App 444, 462; 781 NW2d 105 (2009). But the petitioner "is not required to provide reunification services when termination of parental rights is the agency's goal." Id. at 463. Instead, MCR 3.977(E) outlines the procedure required to terminate a respondent's parental rights at the initial disposition:
(1) the original, or amended, petition contains a request for termination;
(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), (m), or (n);
(4) termination of parental rights is in the child's best interests.
In this case, the original petition included a request for termination. The court found that grounds for jurisdiction were established and then found that allegations contained in the petition were true and established grounds for termination under MCL 712A.19b(3)(b)(i), (j), and (k)(iii). Finally, the court found that terminating respondent's parental rights was in the children's best interests. Thus, the trial court followed the correct procedure to terminate respondent's parental rights and petitioner was under no duty to provide additional services to respondent.
Moreover, petitioner was statutorily required to request termination at the initial dispositional hearing. MCL 722.638(1)(a)(iii) provides that petitioner must submit a petition if it determines that a parent has abused the child and that the abuse included "[b]attering, torture, or severe physical abuse," and subsection (2) provides that if the parent is the perpetrator, petitioner "shall include a request for termination of parental rights at the initial dispositional hearing." Petitioner alleged that respondent struck his children so as to cause bruising, bleeding, broken bones, and infection, and it argued that grounds for termination existed under MCL 712A.19b(3)(k)(iii) for battering or severe physical abuse. Thus, petitioner was required to seek termination at the initial disposition and engage in the procedure outlined in MCR 3.977(E), which does not require petitioner to offer services.
According to discharge paperwork, M1 was diagnosed with cellulitis, which is a "common, potentially serious bacterial skin infection." See <http://www.mayoclinic.org/diseases-conditions/cellulitis/basics/definition/con-20023471> (accessed February 10, 2017). --------
We also note that, although petitioner did not offer services to respondent in this case, it had done so in the recent past. The children were removed from respondent's care following a 2014 petition, and they were returned to respondent's care in May 2015. The trial court found in that case that respondent had successfully completed his case service plan and had benefited from all of the services, and orders in that case indicated that respondent was offered and engaged in services. The events that unfolded thereafter revealed that respondent had not actually benefitted from the earlier services. Reversal is unwarranted.
III. BEST INTERESTS
Respondent next argues that termination was not in his children's best interests. This Court reviews for clear error a trial court's finding that termination is in a child's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "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 BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
After the trial court finds that at least one statutory ground for terminating parental rights has been proven, the court must also find that terminating parental rights is in the child's best interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). "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). The court must make this best-interest finding by a preponderance of the evidence. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).
When deciding whether terminating parental rights is in a child's best interests, the trial court should weigh all of the available evidence. In re White, 303 Mich App at 713. The court should consider evidence regarding "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 at 41-42 (citations omitted). The court "may also consider a parent's history of domestic violence, 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 at 714. A child's placement with a relative weighs against termination, and the trial court must explicitly consider the relative placement when deciding whether termination is in a child's best interests. In re Olive/Metts, 297 Mich App at 43, quoting In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010).
There was a preponderance of evidence that termination was in the children's best interests. And there certainly was no clear error with respect to the trial court's ruling on the issue. Respondent had been subject to at least three CPS investigations due to his continual physical abuse of his children. In this case alone, all three children indicated that respondent whipped them, sometimes to the point where the abuse drew blood. Shortly before the petition was filed, M1 developed cellulitis as a result of a whipping, and M2 suffered fractures to each arm. M3 disclosed that she was regularly secluded in a dog cage as punishment. Contrary to their father's abusive home, the grandfather and step-grandmother's home was suitable, and the children had a strong bond with these relative caregivers who were willing to adopt the children. Given the children's need for stability, as well as their obvious desire to remain free of severe physical abuse, the trial court correctly determined that terminating respondent's parental rights was in their best interests.
Respondent asserts that the trial court did not properly weigh the relative placement as it relates to each child individually. This Court has held that "if the best interests of the individual children significantly differ, the trial court should address those differences when making its determination of the children's best interests." In re White, 303 Mich App at 715-716 (emphasis in original). However, this Court has not held "that the trial court errs if it fails to explicitly make individual and—in many cases—redundant factual findings concerning each child's best interests." Id. at 716 (referring to the holding in Olive/Metts).
As respondent acknowledges, the trial court did address the children's placement with their paternal grandfather. Nevertheless, it determined that termination was in the children's best interests. Defendant fails to explain how this conclusion would have been different had the court made separate findings regarding each child's placement with the same relatives. The children were effectively in the same situation—respondent whipped each of them, causing injuries, sometimes severe. While their ages differed slightly, they were all children of school age that had not yet reached their teenage years. Other than M3's placement in a dog cage, there was no evidence that respondent treated any of his children differently; rather, the record wholly evidences that his abuse caused each child severe physical—and likely also psychological—injury. Given their similar treatment, there was no reason for the trial court to make redundant findings concerning each child's best interests. Reversal is unwarranted.
Affirmed.
/s/ William B. Murphy
/s/ Christopher M. Murray
/s/ Michael J. Kelly