Opinion
No. 342717
08-16-2018
In re S. M. REYNOLDS, Minor.
UNPUBLISHED Kalamazoo Circuit Court Juvenile Division
LC No. 2017-000031-NA Before: MURPHY, P.J., and GLEICHER and LETICA, JJ. PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to his son under MCL 712A.19b(3)(a)(ii) (desertion for 91 or more days and parent has not sought custody during that period), (c)(i) (conditions leading to adjudication continue to exist), (c)(ii) (other conditions cause the child to come within the court's jurisdiction), (g) (failure to provide proper care or custody), and MCL 712A.19b(3)(j) (reasonable likelihood of harm if child is returned to the parent's home). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In January 2017, the Department of Health and Human Services (DHHS) filed a petition seeking placement of the then 7-year-old child into temporary custody because the child's mother was missing and his stepfather had been incarcerated. At that time, father could not be found because he was absconding from probation. The trial court granted the petition, exercised jurisdiction over the child, and placed him in the care and custody of the stepfather's sister and her husband, along with the child's younger halfsiblings. Although this placement involved relatives for the halfsiblings, it involved fictive kin for the child at issue in this case. A trauma assessment determined that the child had suffered significant trauma while in the care of his mother and stepfather. The child not only suffered direct physical and emotional abuse, but he also witnessed domestic violence and substance abuse on the part of his mother and stepfather. Furthermore, between the filing of the initial petition and completion of the trauma assessment, the child learned that his mother had been killed by his stepfather.
After the initial placement with fictive kin, the DHHS located father. The DHHS met with him and made recommendations for a service plan, in an attempt to reunite father with his child. The DHHS also arranged parenting-time visits between father and his child. However, father was arrested and incarcerated for a probation violation after engaging in only two parenting-time visits, and he remained incarcerated throughout the pendency of this case, preventing further parenting-time visits.
The testimony indicated that father had a lengthy history of substance abuse, housing instability, and criminal activity. As a result of his probation violation, father returned to prison on an underlying conviction for fleeing and eluding a police officer, with an earliest possible release date of July 8, 2018, and a maximum possible discharge date of July 8, 2024. The testimony also indicated that father had not seen his child for several years before the two, one-hour parenting-time visits arranged by the DHHS. After the child spent approximately one year in foster care, the trial court terminated father's parental rights. Father now appeals.
II. STANDARD OF REVIEW
"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). This Court reviews for clear error a trial court's factual determination that statutory grounds exist for termination. Id.; MCR 3.977(K). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). "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).
Once a statutory ground for termination of parental rights has been established, the trial court must order the termination of parental rights if the trial court finds by a preponderance of the evidence that termination of parental rights is in the child's best interests. MCL 712A.19b(5); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). We note that "the interests of the child and the parent diverge once the petitioner proves parental unfitness." In re Moss, 301 Mich App at 87. Therefore, the interests of the child, not the parent, are the focus of the best-interest stage of child protective proceedings. Id. at 87-88. This Court reviews for clear error the trial court's determination of best interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012).
III. DUE PROCESS RIGHTS
Father first argues that the trial court and the DHHS violated his due-process rights during these proceedings. In the trial court, father did not argue that his due-process rights were violated. Therefore, this issue is not preserved for appellate review. See In re Hildebrant, 216 Mich App 384, 389; 548 NW2d 715 (1996). We review unpreserved, due-process issues for plain error affecting the respondent's substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009).
Father argues that the trial court and the DHHS placed undue emphasis on his incarceration and on continuation of the child's initial placement in nonrelative foster care. Father also argues that the DHHS never evaluated the child's paternal relatives as future placements for the child and that the DHHS should have placed the child with a relative, rather than with nonrelative foster parents. Father argues that these failures constitute a deprivation of his due-process rights. We disagree.
To the extent that father also argues that the reunification efforts were inadequate because he was not give a sufficient opportunity to participate in the child's trauma assessment, his argument is beyond the scope of the question presented for appellate review and is therefore abandoned. MCR 7.212(C)(5); Ypsilanti Fire Marshal v Kircher, 273 Mich App 496, 543; 730 NW2d 481 (2007).
"It is well established that parents have a significant interest in the companionship, care, custody, and management of their children. This interest has been characterized as an element of liberty to be protected by due process." In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993) (quotation marks and citation omitted). "The essence of due process is fundamental fairness." In re Adams Estate, 257 Mich App 230, 233-234; 667 NW2d 904 (2003) (quotation marks and citation omitted). Yet, the concept of due process is flexible, and analysis of what process is due in a particular proceeding depends on the nature of the proceeding, the risks involved, and the private and governmental interests that might be affected. In re Brock, 442 Mich at 111. "Whether the judicial proceedings were fundamentally unfair requires an inspection of the particular facts of the case because due process negates any concept of inflexible procedures universally applicable to every imaginable situation." In re Adams Estate, 257 Mich App at 234 (quotation marks and citation omitted). Procedural due process requires that a party be provided notice of the nature of the proceeding and an opportunity to be heard by an impartial decision-maker at a meaningful time and in a meaningful manner. In re TK, 306 Mich App 698, 706; 859 NW2d 208 (2014); Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005). The substantive element of due process prohibits arbitrary deprivation of protected interests. In re TK, 306 Mich App at 706.
First, neither the DHHS nor the trial court placed improper emphasis on father's incarceration. The DHHS attempted to put services in place to help father reunify with his son, including parenting-support services, random drug screens, a psychological assessment, and a substance abuse assessment. However, father was incarcerated for a probation violation before those services could be implemented. Once father was incarcerated, the caseworker contacted staff at the prison where father was housed, in order to determine what services father might be eligible to receive while incarcerated. The caseworker testified that father was eligible for two phases of substance abuse treatment, as well as employment training, and the caseworker also explored whether a psychological evaluation could be arranged during father's incarceration. At the termination hearing, father testified about his participation in an employment-training program in which he studied machining and robotics. In describing father's sporadic and inconsistent presence in the child's life, the trial court's termination order described father's lengthy history of criminal activity and incarceration.
We disagree that father was deprived due process on this basis. The DHHS discussed several proposed services with father, but he was incarcerated before those services could be implemented. Once father was incarcerated, DHHS coordinated services available to him in prison. Therefore, the DHHS did not violate father's due-process rights by failing to provide services designed to reunify father with his child. In addition, father was provided notice of the nature of the proceeding and an opportunity to be heard by an impartial decision maker at a meaningful time and in a meaningful manner. See Reed, 265 Mich App at 159. We cannot conclude that the child protective proceedings in this case were fundamentally unfair.
Father also argues that the DHHS violated his right to due process by failing to place the child with his paternal grandmother or aunt while this case was pending. Father repeatedly asked that these relatives be allowed to visit the child or that the child be placed with them, rather than continuing the existing, nonrelative, foster-care placement with the relatives of the child's halfsiblings. The caseworker admitted that the child's grandmother expressed a willingness to have the child placed in her home. The caseworker conducted a background check for the grandmother, which did not reveal any criminality. However, the caseworker did not visit the grandmother's home to determine whether it would be an appropriate placement for the child. The caseworker had some contact with father's sister, who may also have been able to offer an appropriate placement for the child. The record also makes clear that neither paternal relative was allowed to visit the child during the pendency of this case.
There is some indication that father initially recommended placement with his sister, i.e., the child's paternal aunt, but it appears that father was primarily advocating for placement with the paternal grandmother.
While we recognize that the DHHS is required by statute to give preference to relatives in determining initial placement after a child has been removed from a parent's care, see In re COH, 495 Mich 184, 195-196; 848 NW2d 107 (2014), that requirement does not constitute an unequivocal directive to place a child with relatives under all circumstances. Pursuant to MCL 712A.13a(12), pending trial in child protective proceedings, the trial court is required to order placement of the juvenile "in the most family-like setting available consistent with the juvenile's needs." Within 30 days of removal, the supervising agency must "identify, locate, notify, and consult with relatives to determine placement with a fit and appropriate relative who would meet the child's developmental, emotional, and physical needs." MCL 722.954a(2). See also In re COH, 495 Mich at 192-193. Before determining placement for the child, the agency is required to give "special consideration and preference" to relatives who are willing and fit to care for the child and able to meet the child's needs. MCL 722.954a(5). In any event, "[t]he supervising agency's placement decision shall be made in the best interests of the child." Id. In addition, reasonable efforts must be made to place siblings in the same foster care unless joint placement would be contrary to any sibling's safety or well-being. MCL 712A.13a(14)(a) and MCL 722.954a(6)(a).
Father's argument concerning placement with the paternal grandmother or aunt fails to recognize that when the DHHS made the initial recommendation to place the child with his stepaunt and stepuncle, father's whereabouts were unknown and he had been absent from the child's life for several years. Nor is there any indication that father's relatives had maintained a relationship with the child during that time. Indeed, there is evidence that the paternal grandmother had not seen the child since he was one year old. In contrast, the child had an existing relationship with his stepaunt and stepuncle and had already been placed with them for foster care on at least one prior occasion. By the time respondent appeared in this matter and proposed placement with the paternal relatives, the child and his halfsiblings had already begun residing with his stepaunt and stepuncle.
Moreover, the DHHS and the trial court relied heavily on a trauma-assessment report prepared by the Children's Trauma Assessment Center, when determining whether the child should be removed from his nonrelative, foster-care placement and whether he should be allowed visitation with his paternal relatives. The report indicated that the child had suffered significant trauma, including the death of his mother at the hands of his stepfather and exposure to physical abuse, domestic violence, and substance abuse while in their care. The child was also struggling to cope with the sudden reappearance of his father in his life. The report further stated that the child needed a safe, predictable, and nurturing environment to facilitate healing, and that the existing placement with his stepaunt and stepuncle provided such an environment. The report also indicated that changing the child's placement would be "devastating to him emotionally and mentally"; and that separation from his halfsiblings would be overwhelming to the child. Additionally, later counseling updates emphasized that contact with relatives with whom the child did not have an existing bond could be detrimental to his progress.
In light of the above, we are not persuaded that the failure to place the child with the paternal grandmother or aunt was plain error affecting father's substantial rights. Despite their status as fictive kin rather than "relatives" as defined by MCL 712A.13a(1)(j), it seems apparent that the child's stepaunt and stepuncle were able to provide the most family-like setting for the child. See MCL 712A.13a(12). Their previous relationship with the child also made them better equipped to meet the child's needs than blood relatives who had not seen the child in years, particularly when placement with those relatives would require the child to separate from his halfsiblings and current treatment providers. While the foster care provider's ability to meet a child's developmental, emotional, and physical needs is always important in determining placement, it was especially important in this case given the child's delicate emotional and mental state in the wake of the significant trauma he had experienced. The child's continued placement in a stable environment with his stepaunt, stepuncle, and halfsiblings, as opposed to moving the child to placement with a hitherto unknown paternal relative, was clearly in his best interests. Despite father's dissatisfaction with the placement decision, father was given notice and a full opportunity to participate in the child protective proceedings after he was located, and we do not construe the continuation of the child's placement in the care of fictive kin as an arbitrary deprivation of father's parental rights. In re TK, 306 Mich App at 706.
IV. STATUTORY GROUNDS FOR TERMINATION
Father next argues that the trial court clearly erred in finding that termination of his parental rights to the minor child was proper under MCL 712A.19b(3)(a)(ii), (c)(i), (c)(ii), (g), and (j). We disagree.
The trial court first found that termination of father's parental rights to the minor child was proper under MCL 712A.19b(3)(a)(ii), which states in relevant part as follows:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
(a) The child has been deserted under either of the following circumstances:
* * *
(ii) The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.
The trial court stated that a referee had already found by a preponderance of the evidence that father had abandoned his son, and the trial court likewise found by clear and convincing evidence that father abandoned his son for 91 or more days and had not sought custody during that period. Father first argues that the referee determined that he had not abandoned the child. We disagree. Read in context, the referee's statements at the time of father's adjudication reflect her belief that, while father thought he was doing the right thing at the time, he was nonetheless absent from the child's life.
Father also argues that he did not abandon the child because the child's mother had full custody and would not allow father to see the child, despite his repeated requests for parenting time. This argument lacks merit. This Court has previously affirmed termination of parental rights under MCL 712A.19b(3)(a)(ii) where the respondent maintained that a custodial parent prevented contact with the child and the respondent did not seek court intervention to obtain parenting time. See In re TM, 245 Mich App 181, 193-194; 628 NW2d 570 (2001), overruled on other grounds by In re Morris, 491 Mich 81; 815 NW2d 62 (2012). By his own admission, before February 2017 when he engaged in two parenting-time visits in connection with these proceedings, father had no contact with the child since 2013, apart from a single happenstance encounter with the child and the child's mother in September 2016. In addition, father had not provided any financial support for the child, despite the issuance of a child support order in approximately 2013. While father maintains that the child's mother would not permit him to see the child, father acknowledged that he never sought custody or parenting time in court despite the child being placed in care on two prior occasions while in mother's custody. Accordingly, we are not left with a definite and firm conviction that the trial court erred by finding that father deserted the child for more than 91 days and did not seek custody during that period, and the trial court did not err by ordering termination of father's parental rights under MCL 712A.19b(3)(a)(ii).
Father also testified at trial that he saw the child on one other occasion around March 2016, but his assertion at trial was contradicted by his earlier testimony at the adjudication hearing. In addition, the trial court found that father was "not a man who can be trusted or believed," and we generally defer to the trial court's determinations regarding witness credibility. See In re BZ, 264 Mich App at 296-297. --------
"Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Having concluded that father's admissions supported the trial court's findings under MCL 712A.19b(3)(a)(ii), we decline to address father's arguments regarding the remaining grounds for termination. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
V. BEST INTERESTS OF THE MINOR CHILD
Father next argues that the trial court clearly erred in finding that termination of his parental rights was in the child's best interests. We disagree.
Before terminating a respondent's parental rights, the trial court must consider whether termination is in the child's best interests. In re Moss, 301 Mich App at 83, 90. In making that determination, the trial court should consider factors such as "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 White, 303 Mich App 701, 713; 846 NW2d 61 (2014) (quotation marks and citation omitted). Other relevant factors include "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." Id. at 714.
Father argues that termination of his parental rights was not in the child's best interests because they developed a bond in the early years of the child's life; father was a fit parent; father's parenting-time visits with the child in February 2017 went well; and the paternal grandmother was willing and able to care for the child until father was released from prison. Father also maintains that he did not cause any of the trauma suffered by the child and that the stigma of living with relatives of the man who killed his mother would likely cause the child to suffer additional trauma in the future. Even if we accepted each of father's assertions as true, it does not necessarily follow that the trial court erred in finding that terminating father's parental rights was in the child's best interests.
In its written opinion regarding termination of father's parental rights, the trial court included a lengthy discussion of the child's best interests, which addressed (1) the child's lack of attachment to father; (2) father's absence from the child's life for years before he entered care and general failure to demonstrate consistency, nurturing behavior, or stability for the child; (3) father's history of drug abuse and criminality and his long-term lack of stable housing; (4) the child's psychological needs as a result of the physical and emotional abuse that he suffered at the hands of his mother and stepfather; (5) the child's placement in a safe, stable, loving environment with fictive kin and his halfsiblings; and (6) the child's positive progress with behavior and trauma therapy while in foster care. Each of these factors was properly considered by the trial court and weighed in favor of termination. Accordingly, we cannot conclude that the trial court clearly erred in finding that termination of father's parental rights was in the child's best interests.
Affirmed.
/s/ William B. Murphy
/s/ Elizabeth L. Gleicher
/s/ Anica Letica