Opinion
No. 339022 No. 339023
03-20-2018
In re ROBINSON, Minors.
UNPUBLISHED Oscoda Circuit Court Family Division
LC No. 14-000585-NA Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal as of right from an order terminating their parental rights with respect to their three children, CR, MR, and ER, under MCL 712A.19b(3)(c)(i) (conditions continue to exist), (g) (failure to provide care and custody) and (j) (likelihood of harm). We affirm.
In re Robinson Minors, unpublished order of the Court of Appeals, issued 7/20/17 (Docket Nos. 339022 and 339023).
I. FACTS
This case initially came to petitioner's attention because respondent mother admitted to smoking marijuana while pregnant with CR in 2012. In 2014, respondent mother admitted to using morphine intravenously while caring for CR. At the time, respondent father was incarcerated, and respondent mother was sleeping with CR on a mattress on the floor of a friend's home, and lacked any income to support herself. When respondent mother gave birth to MR in 2014, he tested positive for opiates and THC. Both children were then removed from the home and placed in a foster home.
The initial parent agency treatment plan identified substance abuse, emotional stability, resource availability and management, and housing as the barriers to reunification. Both respondents began participating in drug abuse treatment and passed drug screens. Respondents obtained a suitable home and both obtained work. An issue regarding whether respondent mother was bonding properly with MR was raised, but the foster care case manager believed that progress had been made in that area. In May of 2016, respondent mother gave birth to ER, who was born with hydrocephalus, among other medical issues. ER required monitoring for the hydrocephalus, and had appointments with "neuro doctors," cardiovascular doctors because she had a hole in her heart, and ophthalmologists because of fluid on the brain related to the hydrocephalus. By June 2016, enough progress had been made for the children to be returned to respondents. Thereafter, ER missed five medical appointments and MR missed a medical appointment. Moreover, there were subsequent indications that respondents had been lax about having CR and MR wear necessary eye patches.
By August 2016, respondents were evicted and began staying at a friend's home in Gaylord. On August 18, 2016, a campsite with suspected methamphetamine manufacturing components was discovered. Photographs of the campsite showed two plastic dressers and containers that held adult and children's clothes, children's cups and children's chairs. Receipts recovered from the site showed purchases of pseudoephedrine, and respondents were identified as the purchasers. This evidence formed the basis for a search warrant relative to the Gaylord home where respondents were staying.
When the warrant was executed a week later, respondents' children were present. In a room where the children apparently stayed, a "small little bassinette or something for a baby" was found, and inside was "a make-up kit that contained syringes, spoons, it was kit for intravenous drug use." Police also discovered tubing commonly used in methamphetamine production, along with tin foil "meth boats," which tested positive for methamphetamine. A police report indicated that "[s]mall pieces of charred tin foil . . . consistent with the use of methamphetamine" were found in the same room as children's bedding and toys." The room contained the two plastic dressers that had been photographed at the campsite the week prior with children's and adult clothing inside and children's toys were in the room as well. Both respondents were subject to charges related to the manufacturing methamphetamine. All three children were removed from respondents' custody.
Immediately after removal, ER drank two full bottles of formula, and MR "was gorging himself." All three children were placed in the same foster home where they had previously been placed. When CR was informed that he would be returning to the foster home, he responded that he was "glad because my brothers missed me." When they arrived, CR ran to his foster mother "and put his arms around her neck right away." Moreover, MR called the foster father "daddy."
At a review hearing, it was established that respondent father had tested positive for THC on August 29, 2016, August 30 2016, and September 6, 2016, and that respondent mother tested positive for THC on August 3, 2016 and August 29, 2016, for THC, cocaine, and amphetamines on September 9, 2016, and for THC and amphetamines on September 15, 2016. Moreover, respondents were homeless. Supplemental petitions were filed requesting that respondents' parental rights be terminated with respect to all three children. Thereafter, respondent father was incarcerated for a probation violation as a result of testing positive for opiates on October 5, 2016, and respondent mother tested positive for amphetamines on October 25, 2016.
At the termination hearing, there was testimony indicating that both respondents were unemployed. Respondent father had quit a majority of his jobs, about 14 jobs in 30 months. Respondent mother had been employed at a retirement home for six to eight months. Moreover, there was testimony that there were bonding issues between respondents and CR and MR. Given the amount of time CR and MR had spent in foster care, the foster care case manager opined that they needed stability and permanency. She further opined that ER needed parents "that are going to be able to take care of her needs . . . and she needs that stability and the parents to be able to provide that . . . care and be stable . . . ." It was noted that the case had been ongoing for 926 days, only 83 of which the children had spent in the care of their parents, and that the foster parents were able to meet the physical, medical, and emotional needs of the children.
II. ANALYSIS
Respondents argue that petitioner failed to introduce sufficient evidence to terminate their parental rights. We disagree.
This Court reviews a circuit court's decision to terminate parental rights under the clear error standard. In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). "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). Under that standard, the lower court's decision must be "more than just maybe or probably wrong." In re Trejo Minors, 462 Mich 341, 356; 612 NW2d 407 (2000) (citation omitted).
Respondent father argues that the trial court erred when it found that clear and convincing evidence established grounds for termination of parental rights under MCL 712A.19b(3)(c)(i). "The petitioner bears the burden of establishing the existence of at least one of [the statutory grounds for termination of parental rights] by clear and convincing evidence." In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). Parental rights may be terminated under MCL 712A.19b(3)(c)(i) when "182 or more days have elapsed since the issuance of an initial dispositional order," and 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." "This statutory ground exists when the conditions that brought the children into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services[.]" In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quotation marks and citation omitted). The trial court found that the conditions that led to adjudication with respect to CR and MR continued to exist and would not likely be remedied in a reasonable time.
We note that respondent mother does not challenge the trial court's determination under MCL 712A.19b(3)(c)(i).
With respect to CR and MR, the conditions that led to adjudication for both parents were substance abuse, emotional stability, resource availability and management, and housing. Respondents complied with the parent agency treatment plan such that in June 2016 there were "no concerns going forward." Both respondents had made "substantial progress" with respect to emotional stability behavior, and it was noted that respondents had done "very well" parenting together. Additionally, respondent father had obtained full-time employment. This progress was sufficient for the children to be returned to respondents' care.
Three months later, however, it appeared that respondents were involved in manufacturing methamphetamine and traces of drugs as well as drug-related items were found in areas frequented by the children. Moreover, the respondents began to test positive for illegal substances. Respondent father admitted to relapsing after the children were taken the second time. Moreover, with respect to emotional stability, it was noted that respondents would argue with each other in front of the children during parenting visits and that, despite referrals for various psychological services, "the only outside engagement for the counseling domain is the four kept appointments by [respondent mother] and the three couple's counseling appointments that [respondents] did together at Old Town Psychological." As for housing, respondents had been evicted in August 2016 and thereafter had "not had a stable house to live in or obtained housing." Respondents were homeless and moved from place to place, and respondent father sometimes slept in his truck. It appeared that both respondents were unemployed. Moreover, both "had lost all contact with the agency, pretty much from the time that they were evicted from the home." Although respondents had complied with the parent agency treatment plan sufficiently to regain custody of their children, within three months, they had been arrested for methamphetamine production, evicted from their home, and ceased participating in services. Therefore, it was not "maybe or probably wrong," In re Trejo Minors, 462 Mich at 356 (citation omitted), for the trial court to conclude that clear and convincing established that the conditions that led to adjudication continued to exist and were unlikely to be remedied in a reasonable time.
Respondents both argue that the trial court erred when it found sufficient evidence had been introduced to support termination under MCL 712A.19b(3)(g). Parental rights may be terminated under MCL 712A.19b(3)(g) when "[t]he 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." "[A] parent's failure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." In re JK, 468 Mich at 214.
At the termination hearing it was established that respondents had missed ER's appointments in July 2016 for a cardiovascular surgeon, a "neurodevelopment specialist," and an ophthalmologist. Moreover, in March of 2016 respondents arrived an hour late for an ear surgery procedure for CR, "knowing that they needed to give their consent for medical treatment . . . ," and as a result the procedure almost did not take place. Respondents also missed a well-child visit for MR. It appeared that the parents also failed to strictly adhere to having the boys wear eye patches as prescribed. Moreover, respondents failed to benefit from the parent agency treatment plan, evidenced by their return to substance abuse and the failure to provide stable income and housing. Such a failure "is evidence of a parent's failure to provide proper care and custody for the child." In re JK, 468 Mich at 214. Given respondents' failure to provide proper medical care for the children, especially in light of ER's special needs, and their failure to benefit from the parent agency treatment plan, the trial court was not "more than just maybe or probably wrong," In re Trejo Minors, 462 Mich at 356 (citation omitted), when it found that clear and convincing established the ground for termination under MCL 712A.19b(3)(g). Because only one ground for termination must be proved, In re JK, 468 Mich at 210, we decline to address respondents remaining argument pertaining to the statutory grounds for termination of parental rights.
Respondents next argue that the trial court erred when it found that termination was in the children's best interests. We disagree. "Even if the trial court finds that the Department has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the children." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). Factors to consider include the child's bond to the parent; the parenting ability of the respondent; the child's need for permanency, stability, and finality; and a comparison between the parent's home and the child's foster home. In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). The trial court may also consider "the length of time the child was in care, the likelihood that 'the child could be returned to her parents' home within the foreseeable future, if at all,' and compliance with the case service plan." In re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015), quoting In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). In addition, the court may consider "the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 714.
There was evidence of problems with the bonding between respondents and the children, as well as evidence of a good bond with the foster family. Moreover, CR and MR had spent a considerable amount of time in foster care, and needed stability and permanency. There was testimony that ER needed parents "that are going to be able to take care of her needs" and that the foster parents were "able to meet the physical, medical, emotional needs of these children." Additionally, as described above, respondents failed to significantly benefit from the treatment plan. Given this record, in particular the comparison between the parent's home and the child's foster home, In re Olive/Metts Minors, 297 Mich App at 41-42, and "the length of time the child[ren] w[ere] in care," In re Payne/Pumphrey/Fortson, 311 Mich App at 64, the trial court properly found that petitioner had introduced a preponderance of the evidence demonstrating that termination was in the children's best interest.
Finally, respondent father argues that he was denied effective assistance of counsel when his trial counsel failed to make a record of the fact that the trial judge had presided over respondent father's probation violation hearing. Respondent father failed to preserve this issue for appeal by either moving the trial court for either an evidentiary hearing or a new trial. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). "Where claims of ineffective assistance of counsel have not been preserved, our review is limited to errors apparent on the record." People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
This Court has explained that "the principles of effective assistance of counsel developed in the context of criminal law apply by analogy in child protective proceedings." In re EP, 234 Mich App 582, 598; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo, Minors, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). --------
In order to prevail on a claim of ineffective assistance of counsel, the party "must show that her trial counsel's performance was deficient, i.e., she must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced her that it denied her a fair trial." In re CR, 250 Mich App 185, 198; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495 Mich 394; 852 NW2d 524 (2014) (citation and quotation marks omitted). Showing prejudice "necessarily entails proving . . . that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." Id. (citation and quotation marks omitted).
Respondent father was apparently incarcerated on December 13, 2016, for a violation of his probation for possessing opiates. He asserts that the presiding judge in the instant case also presided over his probation violation and was thus likely biased against him. Judges may be disqualified if "[t]he judge is biased or prejudiced against a party or attorney," or "[t]he judge has personal knowledge of disputed evidentiary facts concerning the proceeding." MCR 2.003(C)(1)(a), (b).
Respondent father asserts that the trial judge may have had knowledge of matters not on the record in this matter, and that had trial counsel addressed this issue, a different result would have occurred because respondent father's "initial admissions were exclusively based upon incarceration and criminality." In its opinion, the trial court stated that "[c]onditions that led to removal of CR and MR were each parent's substance abuse, lack of housing, inability to manage resources, and lack of income." It then explained that "in spite of massive amounts of services offered and provided to each parent," conditions had not changed after 30 months, and given the amount of time with "no significant benefit," the conditions were not likely to change. Under MCL 712A.19b(3)(g), the trial court stated that "[e]ach parent failed to make the changes in his or her lifestyle required to put each boy's needs first in order to provide proper care and custody." Additionally, the trial court stated that "[e]ach parent has failed to ensure ER, a high needs child, received the specialized medical care her condition required over the few months that ER was in parents' care." Given these circumstances, concluded the trial court, "there is no reasonable expectation that either parent will be able to provide proper care and custody within a reasonable time considering the children's ages and the length of time each child has already been in out of home placement." Under MCL 712A.19b(3)(j), the trial court stated that "[b]oth parents knew they were being evicted in August 2016 yet failed to take steps to secure a suitable home for the family prior to eviction," and that the children were moved into a home where they were "exposed to drug paraphernalia, the children's bedroom contained methamphetamine boats and other drug related materials." The trial court explained that "[f]ather's criminal case is still pending and could potentially result in jail time if he is found guilty following trial." With respect to the children's best interests, the trial court explained that "[e]ach parent is in the same position now as at the start of the case 30 months ago with issues related to substance abuse, homeless, no stable lifestyle and no stable source of income." The only reference made by the trial court to respondent father's criminal behavior was that he had a case pending that could result in incarceration. No mention was made of his probation violation or the circumstances that led to it.
Although there was evidence of respondent father's probation violation, "[a] judge is disqualified when he cannot hear a case impartially pursuant to MCR 2.003(B)." Cain v Dep't of Corrections, 451 Mich 470, 494; 548 NW2d 210 (1996). There is no evidence of a bias against respondent father and accordingly, an objection to the judge on these grounds would have been futile. Moreover, given that ample evidence was presented to support termination, there was not "a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." In re CR, 250 Mich App at 198. Accordingly, respondent father has failed to establish ineffective assistance of counsel.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Deborah A. Servitto