Opinion
No. 342718
10-18-2018
In re ROGERS, Minors.
UNPUBLISHED Van Buren Circuit Court Family Division
LC No. 15-018376-NA Before: BOONSTRA , P.J., and O'CONNELL and TUKEL, JJ. PER CURIAM.
Respondent-mother appeals as of right the termination of her parental rights to the minor children, KDR and KJR, pursuant to MCL 712A.19b(3)(g) and (j). For the reasons provided below, we affirm.
I. BASIC FACTS
In November 2015, police discovered that respondent was engaged in the sale of methamphetamine from her home and that respondent allowed a methamphetamine operation to exist in portions of the home accessible to the children, who were ages 3 and 7 at the time. Respondent was incarcerated in March 2016, and she ultimately was sentenced to a term of 3 to 20 years' imprisonment based on her conviction for maintaining a methamphetamine lab. Respondent began serving her prison term on May 4, 2016, and she was allowed to participate in a boot camp program from November 2016 through January 2017. Her successful completion of the boot camp program led to her release on parole on January 25, 2017. Almost immediately following her release, respondent tested positive for cocaine and methamphetamine, resulting in her return to jail for short periods in June and August 2017 for parole violations. Respondent then committed a third parole violation when she had been in contact with someone who was in prison; she had possessed alcohol; and she had possessed prescription drugs that were not prescribed to her. As a result of that third parole violation, respondent was again incarcerated from September 2017 through January 2018. Swiftly following her release from that period of incarceration, respondent posted on social media that she smoked marijuana and that her boyfriend was on parole; the DHHS caseworker testified that both of those items likely represented additional parole violations. The trial court found that statutory grounds for termination under MCL 712A.19b(3)(g) and (j) had been proven by clear and convincing evidence, and that termination was in the best interests of the children.
It is not in the record whether the drugs were controlled substances or merely prescription medication. Regardless, the record does make clear that the drugs were prescribed to one of her children and that the drugs had been crushed, which is a common feature of drugs which are being abused. Further, the drugs had been stored in mother's bedside table, leading to a strong inference that she was taking them.
II. ANALYSIS
On appeal, respondent argues that the trial court clearly erred in finding clear and convincing evidence to support the statutory grounds for termination. We disagree.
"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 "the trial court's findings of fact under the clearly erroneous standard." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009); see also MCR 3.977(K). "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).
Respondent's parental rights were terminated under MCL 712A.19b(3)(g) and (j), which at the time of the termination order provided:
(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:
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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.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. The new version of the statute reads: "The parent, although, in the court's discretion, financially able to do so, fails to provide proper care and 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 children's age." MCL 712A.19b(3)(g), as amended by 2018 PA 58. --------
There was clear and convincing evidence to support termination of respondent's parental rights under MCL 712A.19b(3)(g). There is ample evidence that respondent's substance abuse problem prevented her from providing proper care and custody for the children within a reasonable time considering the children's ages, who were now 6 and 10 at the time of termination. On appeal, respondent admits that she had a substance abuse problem, but she argues that substance abuse recovery anticipates and almost expects relapses in various degrees. Respondent argues that she was making progress with her substance abuse problem and argues that she could have resolved her substance abuse problem within a reasonable time given the children's ages. We certainly laud respondent's efforts to overcome her substance abuse problem and do not doubt that relapse is common or even ubiquitous in the course of such recovery. Nevertheless, while an expectation of such setbacks might be a common part of substance abuse treatment, it cannot overcome the statutory requirement, established by our Legislature. And here, the record establishes that respondent was unable to provide proper care for the children. Given the evidence regarding respondent's recurrent drug use, it is impossible to say, even if she ultimately is successful in her drug treatment, when she will be thoroughly successful and not subject to relapse, and whether such a time frame would allow her to provide proper care for the children within a reasonable period of time considering their ages, MCL 712A.19b(3)(g). That conclusion is merely bolstered by respondent's multiple periods of incarceration for violations of her parole conditions. Therefore, there is no basis for finding that the trial court erred in finding that statutory grounds existed to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(g).
Because we have determined that the trial court properly found that one statutory ground supported the termination of respondent's parental rights, we need not address whether there was evidence to support termination on the other ground with which the trial court relied. See In re Foster, 285 Mich App 630, 633; 776 NW2d 415 (2009).
Finally, respondent argues that the lawyer-guardian ad litem (L-GAL) provided ineffective assistance to the minor children. We need not reach the merits of this argument because respondent lacks standing to challenge the effectiveness of the L-GAL on behalf of the minor children. In re HRC, 286 Mich App 444, 458-459; 781 NW2d 105 (2009); In re EP, 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341; 612 NW2d 407 (2000). Respondent acknowledges that she lacks standing under this Court's precedent, but she expresses her disagreement with our previous rulings, and she urges us to consider the L-GAL's effectiveness. Despite respondent's disagreement, post-1990 published decisions of this Court are binding authority. See MCR 7.215(J)(1). Consequently, because respondent lacks standing to challenge the L-GAL's effectiveness, we may not consider this issue. See In re HRC, 286 Mich App at 458-459.
Affirmed.
/s/ Mark T. Boonstra
/s/ Peter D. O'Connell
/s/ Jonathan Tukel