Opinion
No. 334696 No. 334697
05-18-2017
In re B. RICHER, Minor.
UNPUBLISHED Delta Circuit Court Family Division
LC No. 15-000142-NA Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal as of right the order terminating their parental rights to their child, BR, pursuant to MCL 712A.19b(c)(i) (conditions that led to the adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood child will be harmed if returned to the parent's home). We affirm.
Respondent-mother had abused drugs during her pregnancy. BR tested positive for Clonazepam at birth, which respondent-mother had not been prescribed. The child experienced prolonged withdrawal symptoms that were treated with methadone and phenobarbital, and had a lengthy stay in a neo-natal intensive care unit. A significant amount of dog feces was found in respondents' home during a home visit by petitioner shortly following BR's birth. The child was first placed with a foster family, then with respondent-father's relatives, then back with the foster family after respondent-father's relatives asked that the child be placed in a different setting. Respondent-father's family was unable to take care of BR because of his special needs.
Respondents both argue that the trial court erroneously concluded that the statutory grounds for termination were established by clear and convincing evidence. We disagree.
This Court reviews for clear error a trial court's decision that the statutory grounds for termination have been proven by clear and convincing evidence. In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000). A finding is clearly erroneous if the reviewing court, deferring to the special ability of the trial court to judge the credibility of witnesses, is left with the definite and firm conviction that a mistake has been made. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
MCL 712A.19b(3)(c)(i), (g) and (j) provide as follows:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
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(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
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(j) There 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.
Respondent-mother argues that she cooperated with her case-services plan and had made progress toward complying with it by becoming involved with BR's physical therapy and by attending parenting classes. One of the key requirements of respondent-mother's case-services plan was that she refrain from using drugs. Although respondent-mother may have started the process of receiving and engaging in drug rehabilitation, foster care worker Jessica Chevalier testified that respondent-mother did not follow through with drug treatment. Respondent-mother repeatedly tested positive for amphetamines, methamphetamines, and buprenorphine. On August 7, 2015, a police officer discovered "narcotic paraphernalia," including "a spoon, syringe, what looked like to be a drug kit," in the home. Additionally, Chevalier testified to seeing "track marks" on respondent-mother's arm that same day.
We acknowledge that respondent-mother apparently had made some progress, as she tested negative for amphetamine, methamphetamine, and buprenorphine in October, November, and December 2015. However, she tested positive for buprenorphine in March 2016, and as of the termination hearing in August 2016 she was in jail awaiting sentencing on what Chevalier characterized as "felony charges for possessing stolen drugs." Further, Chevalier testified that respondent-mother was abusing substances while in jail. Thus, respondent-mother's assertions that she is successfully dealing with her drug problem is not supported by the record evidence. The record evidence does show that respondent-mother had found work before her incarceration, was involved in BR's physical therapy, and had taken parenting classes. However, post-testing parenting classes did not show she had made progress. Respondent-mother's progress on all of the goals of her case-service plan has been inconsistent at best, see In re Trejo Minors, 462 Mich at 346 n 3 (observing that a respondent's "[f]ailure to substantially comply with a court-ordered case-service plan is evidence that return of the child to the parent may cause a substantial risk of harm to the child's life, physical health, or mental well being") (quotation marks and citation omitted), and her substance abuse issues continue to be a major concern. Therefore, the record evidence supports the trial court's determination to terminate her parental rights under §§19b(c)(i) and (g).
Regarding §19b(3)(j), it was reasonable for the trial court to conclude that BR would be put at risk by respondent-mother's continuing drug problem. The draw of illegal substances led to respondent-mother's arrest on felony drug charges, for which she was in jail as of the termination hearing, held over a year after her adjudication. Respondent-mother simply has not stabilized her life to the point that she could provide an appropriate, safe and drug-free home for the child. Indeed, where she would live once she is released from incarceration was unclear from the record. Accordingly, the trial court's conclusion that statutory grounds were established pursuant to §19b(3)(j) is not clearly erroneous.
Respondent-father argues, addressing §19b(3)(c)(i) and (g), that the termination decision was made prematurely and that due regard was not given to his progress in meeting the expectations of the case-services plan. He argues that any failure to comply with the case-services plan should be excused because he was given less time than respondent-mother to make changes and had suffered a breakdown in his relationship with Chevalier. However, the evidence shows that respondent-father has a serious substance abuse problem and has not been forthright about it. Respondent-father told Chevalier he had tested positive for methamphetamines on two occasions, and she stated she did not believe his claim those were his only experiences with the drug. Additionally, drug paraphernalia has been found in his home, including equipment to inject drugs intravenously. Chevalier further testified to seeing "small marks that looked like they could have been from a needle" on respondent-father during a home visit, the same day that the syringe and what looked to her "to be a drug kit" were found in his home. Respondent-father also admitted to using drugs he was not prescribed. He tested positive for hydrocodone, tramadol, and for buprenorphine. Like respondent-mother, we acknowledge that respondent-father also had a number of negative drug screens. Yet his most recent drug screen was positive, for buprenorphine. This record of drug abuse undermines respondent-father's assertions that he does not suffer from drug addiction, and thus significantly impairs his credibility. See In re Miller, 433 Mich at 337 (explaining that a reviewing court must defer to the special ability of the trial court to judge the credibility of witnesses).
Respondent-father also failed to provide any documentation that he was attending any type of treatment for his addiction, and, according to Chevalier, respondent-father stated he would not attend treatment if termination of his parental rights was being sought. Respondent-father also failed to comply with his case-services plan by not keeping in regular contact with Chevalier. Finally, he had not shown up for work since June 6, 2016, and had not provided any employment update to suggest he was working elsewhere. Therefore, the record contained ample evidence to support the trial court's determination with respect to §19b(3)(c)(i) and (g). While respondent-father attempts to place primary responsibility on respondent-mother in this case with respect to the applicability of MCL 712A.19b(3)(j), respondent-father's own failure to admit to and effectively treat his substance abuse problem supports the trial court's finding that termination of his parental rights was necessary pursuant to this statutory subsection.
Respondents also argue that termination of their parental rights was not in BR's best interests. We disagree.
This Court reviews for clear error the trial court's ruling that termination of parental rights is in a child's best interests. In re Trejo Minors, 462 Mich at 356-357.
MCL 712A.19b(5) provides, "[i]f 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." In determining the best interests of the child, the trial court may consider facts such as "the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, finality, and the advantages of a foster home over the parent's home." In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). It may also consider the length of time the child was in foster care, the likelihood that the child could be returned to the parent's home in the foreseeable future, compliance with the case-services plan, In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012), evidence that the child is not safe with the parent and is thriving in foster care, In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011), "and the possibility of adoption." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
In support of her argument that termination of her parental rights was not in BR's best interests, respondent-mother notes that she and her family have bonded with him, and she has proven her willingness to parent by attending his physical therapy appointments. Respondent-father argues that because he performed substantially better than respondent-mother under the case-services plan, terminating his parental rights is not in BR's best interests. While the examples cited by respondent-mother are positive, the record confirms that her drug problem has not been successfully addressed. Specifically, toward the conclusion of the proceedings in the lower court, respondent-mother was incarcerated for criminal activity related to drug use. Respondent-father has also failed to address his drug problem. Additionally, the record shows that respondents have failed to successfully engage in or benefit from any services provided. Both respondents also lack lawful, steady employment, and are unable to provide a safe, secure and stable home for the child.
Respondent-father also argues that because his family had custody of BR at one point during the lower court proceedings, the principle of relative placement weighs against termination. See In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). However, the record reflects that BR was cared for by his paternal relatives for a short time during the lower court proceedings. BR was not in relative placement at the time of termination of respondents' parental rights because his paternal relatives asked for him to be removed from their care because of their inability to care for his special needs. While the record reflects that respondent-father's parents had provided support to BR's foster family, there was no showing that these relatives sought placement of BR in their home. On this record, there is simply nothing to suggest that petitioner did not adequately investigate or consider appropriate relative placements for BR before terminating respondent-father's parental rights. The record did confirm that BR was living with a foster family that was committed to supporting him and taking care of him, with a willingness to adopt him and provide a permanent home for him. In sum, the record contains ample evidence to support the trial court's determination that it was in BR's best interests to terminate respondents' parental rights.
Affirmed.
/s/ Deborah A. Servitto
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood