Opinion
No. 349799 No. 349800
01-21-2020
In re A. Q. SALAZAR, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Lenawee Circuit Court Family Division
LC No. 17-000831-NA Before: RIORDAN, P.J., and SAWYER and JANSEN, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal as of right the order terminating respondents' parental rights to the minor child AQS, under MCL 712A.19b(3)(c)(i) (failure to rectify conditions that led to adjudication), (c)(ii) (failure to rectify other conditions), and (g) (failure to provide proper care or custody). On appeal, respondents argue that the trial court clearly erred when it determined that termination was in AQS's best interests. Additionally, father argues that the trial court denied father due process by a neutral decision maker when the trial court allowed petitioner, the Department of Health and Human Services (DHHS), to file a supplemental petition without holding a permanency planning hearing, where father could challenge the trial court's decision to change the goal of the proceedings from reunification to termination. We affirm.
This case arises out of allegations of abuse and neglect of AQS. The DHHS filed a petition seeking removal of AQS, alleging that it was contrary to the welfare of AQS to remain in mother's home with father because of numerous instances of domestic violence between respondents, as well as concern over AQS's mental health. The petition was authorized, respondents pleaded to the statutory grounds for jurisdiction, and the trial court ordered that respondents comply with the case service plans, which required respondents to engage in individual therapy, to have AQS participate in therapy, and for respondents to maintain separate, suitable housing.
Regarding the case service plan, mother went from full compliance at the beginning of the case to minimal compliance, which included inconsistently attending individual therapy, being discharged from parent management training, and eviction from her home. Father had sporadic compliance throughout the case, which included attending individual therapy, but not attending domestic violence treatment, being homeless for stretches of time, and otherwise not having suitable housing when he was not homeless. Following a permanency planning hearing, the trial court warned respondents that they needed to engage in the offered services, otherwise the DHHS would file a petition seeking termination of respondents' parental rights.
Respondents failed to fully comply with the case service plans, and the DHHS filed a supplemental petition seeking termination of respondents' parental rights. Fourteen days later, the trial court held a permanency planning hearing and changed the goal from reunification to termination. Following three termination hearings, the trial court found that there was clear and convincing evidence to terminate respondents' parental rights under MCL 712A.19b(3)(c)(i), (ii), and (g), and that termination was in the best interests of AQS. This appeal followed.
I. BEST INTERESTS
Respondents argue that the trial court clearly erred when it determined that termination of respondents' parental rights was in the best interests of AQS. We disagree.
After a trial court finds that a statutory basis for termination exists by clear and convincing evidence and that a preponderance of the evidence shows "that termination of parental rights is in the best interests of a child, the court must terminate the respondent's parental rights to that child." In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). "The trial court's decision on the best interests question is reviewed for clear error." In re BZ, 264 Mich App 286, 301; 690 NW2d 505 (2004). A trial court's decision "is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
"The trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). The trial court "may consider 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 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "The trial 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. "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 trial court determined that termination was in AQS's best interests because AQS "has a number of significant special needs" and respondents did not adequately help AQS benefit from the services that were offered to help AQS with his needs. When AQS was first removed from mother's home, mother complied with her case service plan by attending individual therapy and parent management training. Although there were other contributing factors, the DHHS, the lawyer-guardian ad litem (LGAL), and the trial court agreed that AQS could be placed back with mother because of mother's progress in the services. However, after AQS was placed back with mother, mother's progress with her services halted. Mother stopped attending parent management training, and eventually was dismissed from the program for failure to attend. Similarly, father was twice dismissed from his individual therapy. Respondents failed to benefit from, or even attend, the therapy and parenting services that were offered to them. Thus, the trial court properly considered respondents' failure to comply with the case service plan, In re White, 303 Mich App at 714, which prevented respondents from developing the parenting skills necessary to successfully parent AQS, In re Olive/Metts, 297 Mich App at 42.
The trial court also considered AQS's need for permanency and stability. Over the course of this case, AQS had been moved to different placements numerous times. At the time of termination, AQS was six years old. AQS's therapist opined that AQS needed consistency and structure to thrive. The trial court determined that respondents were unable to provide consistency and structure. Additionally, mother had attempted to undermine the structure that was in place for AQS by fabricating stories of abuse and neglect in the foster placements. Moreover, father did not have stable housing, and was homeless throughout much of this case. Thus, the trial court properly considered that termination of respondents' parental rights was in AQS's best interests because respondents were not able to provide permanency and stability for AQS. In re Olive/Metts, 297 Mich App at 42. It should be noted that the trial court also considered the history of domestic violence between respondents as a reason for why termination was in AQS's best interests. In re White, 303 Mich App at 714.
Mother argues that the trial court clearly erred when it determined that mother and AQS had a "limited bond" because there was voluminous evidence that mother and AQS had a strong bond. While there was evidence of the bond between mother and AQS, a strong bond is only one consideration that a trial court will consider. Despite the bond between mother and AQS, the other considerations, such as mother's failure to benefit from the case service plan and AQS's need for permanency and stability, outweighed any bond between AQS and mother. Thus, mother's argument fails.
Father argues that the trial court's reasoning for why termination was in AQS's best interests was devoid of factual support. This contention is without merit. Starting with the July 10, 2018 dispositional review hearing, Ashley Beach, the foster care worker assigned to the case, testified that father was participating in individual therapy, but not participating in a domestic violence program. Beach also testified that mother had not enrolled AQS in any therapy programs since removing AQS from trauma therapy, and that mother was not participating in the parent management training. Similar reports were given by the LGAL and Beach throughout the remainder of the case. Thus, a review of the record establishes that there was factual support for the trial court's reasons why termination of respondents' parental rights was in the best interests of AQS.
Father further argues that the trial court did not address any of the In re White factors, and that consideration of the factors established that termination was not in the best interests of AQS. As an initial matter, the trial court was not required to consider any specific factor in making its best-interests determination. In re White merely lists a number of factors that a trial court may consider in determining whether termination is in a child's best interests. See In re White, 303 Mich App at 713-714 ("[T]he court should consider a wide variety of factors that may include 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. The trial 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.") (quotation marks and citation omitted; emphasis added). Moreover, it is clear that the trial court did consider a number of the factors, including AQS's bond to respondents, respondents' parenting abilities, AQS's need for permanency, the history of domestic violence between respondents, respondents' noncompliance with the case service plans, and mother's attempts to undermine AQS's foster care placements. Thus, father's argument fails.
II. DUE PROCESS
Father argues that the trial court denied father due process when it allowed the DHHS to file a supplemental petition seeking termination without first holding a permanency planning hearing. We disagree.
"In general, issues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). Father did not object to the trial court stating that the DHHS could file a supplemental petition at any time, without a permanency planning hearing. Because this issue was not raised, addressed, or decided by the trial court, it is unpreserved.
Generally, "[w]hether proceedings complied with a party's right to due process presents a question of constitutional law that we review de novo." In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). However, because father's issue is unpreserved, this Court will review the issue for plain error affecting substantial rights. In re TK, 306 Mich App at 703. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error affects substantial rights when it causes prejudice, i.e., when the error affects the outcome of the proceedings. In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008). When plain error has occurred, reversal is only warranted when the error resulted in the conviction of an actually innocent defendant, or when the error seriously affected "the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (internal quotation marks and citation omitted).
"A natural parent has a fundamental liberty interest 'in the care, custody, and management' of his child that is protected by the Fourteenth Amendment of the United States Constitution and by article 1, § 17, of the Michigan Constitution." In re Rood, 483 Mich at 91. "In Michigan, procedures to ensure due process to a parent facing removal of his child from the home or termination of his parental rights are set forth by statute, court rule, [DHHS] policies and procedures, and various federal laws . . . ." Id. at 93.
Father's issue implicates the procedures concerning the permanency planning hearing. "If a child remains in foster care and parental rights have not been terminated, the court must conduct a permanency planning hearing within one year of the child's removal." Id. at 99, citing MCL 712A.19a(1); MCR 3.976(B)(2). Although the trial court will determine whether the DHHS must file a petition seeking termination at a permanency planning hearing, MCL 712A.19a(4)(b), the DHHS may file a supplemental petition seeking termination "at any time after the initial dispositional review hearing, progress review, or permanency planning hearing, whichever occurs first," MCR 3.977(H)(1)(a). Thus, a trial court is not required to hold a dispositional review hearing to determine whether the DHHS must file a supplemental petition seeking termination.
The initial dispositional review hearing was held on March 7, 2017. Over the next nineteen months, father was given the opportunity to comply with his case service plan to obtain the goal of reunification with AQS and avoid termination of his parental rights. Instead, father continued to sporadically attend his counseling and failed to obtain stable housing. The DHHS filed the supplemental petition seeking termination on October 2, 2018. Because the supplemental petition seeking termination was filed after the initial dispositional review hearing, a permanency planning hearing was not required. Moreover, a permanency planning hearing was held on July 31, 2018, at which the trial court warned father that if father did not engage in the case service plan, the DHHS would file a petition seeking termination of father's parental rights:
The Agency has asked that I warn the parents that they may be filing a Termination Petition before or after the next hearing. So I want to make sure that they are aware of that warning. I am hopeful that we can continue to work toward reunification. But we do need to see the two of you engage in services and show us some significant progress between now and when we come back in October.Thus, father had notice that the trial court was considering changing the goal from reunification to termination if father did not engage in his case service plan. However, father failed to do so, and the DHHS filed a petition seeking termination of father's parental rights, just as the trial court warned. Because the DHHS could file a supplemental petition seeking termination at any time, and because father was aware that the goal could change from reunification to termination if father did not comply with his case service plan, father's argument fails.
Father also asserts that the trial court was not impartial because it allowed the DHHS to file a supplemental petition seeking termination before a permanency planning hearing was held. "A trial judge is presumed to be impartial and the party who asserts partiality has a heavy burden of overcoming that presumption." In re MKK, 286 Mich App 546, 566; 781 NW2d 132 (2009). Father merely asserts that the failure to hold a permanency planning hearing gave the appearance of "a lack of objectiveness" because father "got a clear message that he will not be afforded a meaningful day in court." As stated above, the trial court was not required to hold a permanency planning hearing before the DHHS filed a supplemental petition seeking termination. Thus, the trial court was not partial when it allowed the DHHS to file a termination petition in accordance with the Michigan Court Rules. See Huntington Nat'l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 517; 853 NW2d 481 (2014) (stating that a trial court's control over the proceedings generally cannot be used to establish bias). Moreover, father fails to recognize that the trial court afforded father "a meaningful day in court" throughout the nearly two years of proceedings by giving father opportunity after opportunity to comply with the case service plan to avoid termination of his parental rights. Father has failed to establish that the trial court was not impartial.
Affirmed.
/s/ Michael J. Riordan
/s/ David H. Sawyer
/s/ Kathleen Jansen
In re Salazar, unpublished order of the Court of Appeals, entered July 23, 2019 (Docket Nos. 349799 and 349800).