Opinion
No. 349666
01-23-2020
In re SCHWARTZ, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Muskegon Circuit Court Family Division
LC No. 17-004321-NA Before: O'BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ. PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to the minor children, GLS, DMS, TES, and MFS, pursuant to MCL 712A.19b(3)(c)(i) (failure to rectify the conditions that led to adjudication); MCL 712A.19b(3)(g) (failure to provide proper care and custody); and MCL 712A.19b(3)(j) (reasonable likelihood of harm if the children were returned to the parent). We affirm.
I. FACTS
On April 26, 2018, the Department of Health and Human Services (DHHS) submitted a 56-page petition to the trial court for temporary custody that included numerous allegations of domestic violence perpetrated by both parents and supporting police reports. The DHHS alleged in the petition that respondent and mother continuously allowed the children to be exposed to ongoing threats in their home, including neglect, exposure to domestic violence, substance abuse, and criminal activity. The petition stated that respondent and mother had explosive behaviors when they became upset, resulting in law enforcement becoming involved on many occasions. The petition continued that this was demonstrated by police involvement on four separate occasions in the two months preceding the petition after respondent and mother were drinking and got into verbal and physical altercations. The most recent incident discussed in the petition involved respondent kicking and strangling mother, after she punched him in the head and attempted to stab him with a knife. The petition stated that both respondent and mother acknowledged that they were unaware whether the children were sleeping or if they were observing the incidents of domestic violence. The petition alleged that respondent's substance abuse and emotional instability affected his ability to supervise, protect, and care for the children. In addition, the petition alleged that respondent and mother recognized that the children's behaviors and emotions were affected by the ongoing verbal and physical violence and by their untreated mental health issues. The petition noted that as of April 6, 2018, respondent and mother had decided to get a divorce, but were not yet separated.
Mother also had her parental rights terminated, but she is not a party to this appeal.
The petition went on to describe numerous incidents of domestic violence where police were called to respondent's home in: September 2016, when mother punched respondent in the face after respondent smashed mother's phone and yelled at her while the children were present; May 2017, when, during an argument with mother, respondent threw a glass cup toward the wall and hit DMS in the head before respondent shoved mother to the ground (respondent was arrested for this assault but the charges were later dropped); June 2017, when respondent was assaulted by his older son from another marriage and a no-contact order was put in place, but respondent admitted to allowing the son back into the home with the children despite the son's ongoing violent behaviors (that son was later accused of criminal sexual conduct against mother).
Further, the petition described a prior petition that was filed on August 25, 2017, requesting that mother be removed from the home and "in-home jurisdiction" over the children; however, that petition was dismissed after respondent and mother agreed to follow a safety plan and to participate in services, including counseling, substance abuse treatment, and ongoing monitoring by Children's Protective Services (CPS). Despite these agreements, according to the petition, respondent then said that he did not need services and refused CPS's attempts to engage him in services until November 2017. The petition stated that the police were again called to respondent's residence on November 13, 2017, when mother tried to return to the home after being gone for five days "partying and having sex with other guys," and respondent pushed mother outside while the children were present. The petition alleged that this was a violation of the safety plan put in place on September 14, 2017, and that respondent contacted CPS on that November day to report that he needed help with mother. According to the petition, in December 2017, respondent disclosed that he broke mother's nose during a physical altercation. The petition went on to state that the police were again called on February 21, 2018, when respondent and mother were fighting and intoxicated in front of the children, despite those actions being against the safety plan and despite both parents acknowledging the necessity of the safety plan to keep the children safe. The petition further alleged that respondent consistently placed the children in situations presenting a risk to their safety, neglecting to protect the children, and allowing them to be exposed to situations threatening to harm their physical and mental well-being, despite the intervention of CPS, the DHHS, and multiple law enforcement agencies.
The DHHS submitted a petition to terminate respondent's rights in April 2019. In May and June 2019, the trial court held a termination trial. At the trial, the petitioner presented testimony and evidence showing that respondent was obsessed with mother and put his toxic relationship with her above the needs of the children; he did not take responsibility for his actions related to his alcohol use and domestic violence; he continued drinking until he was arrested for drunk driving and put on an alcohol tether; and he did not begin addressing his mental health concerns until two months before the termination trial. The trial court found that the DHHS made reasonable efforts to preserve and reunify the family, but that the efforts were unsuccessful. The trial court found that the conditions that brought the children into care had not been rectified and would not be rectified within a reasonable time considering the children's ages; that respondent, although financially able to do so, failed to provide proper care and custody of the children and there was no reasonable expectation that he would be able to within a reasonable amount of time; and that there was a reasonable likelihood that the children would be harmed if returned to respondent. Therefore, the trial court determined that petitioner proved the statutory bases for termination pursuant to MCL 712A.19b(3)(c)(i), (g), and (j) by clear and convincing evidence. Additionally, the trial court determined that termination of respondent's parental rights was in the children's best interests because the children were progressing in foster care and they were deserving of a stable and loving home.
II. STATUTORY GROUNDS
Respondent argues that the trial court erred in finding that there was clear and convincing evidence to terminate his parental rights pursuant to MCL 712A.19b(c)(i), (g), and (j). 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, 135; 809 NW2d 412 (2011). The trial court's termination determinations are reviewed for clear error. MCR 3.977(K); In re VanDalen, 293 Mich App at 139. "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 Moss, 301 Mich App at 76, 80; 836 NW2d 182 (2012) (quotation marks and citation omitted).
The record demonstrates that the initial petition was filed because of respondent's substance abuse, untreated mental health concerns, and domestic violence. The children came within the trial court's jurisdiction after respondent's plea, in which he acknowledged a history of perpetrating domestic violence. The dispositional order was entered July 11, 2018. The first termination hearing was held on May 2, 2019, thereby satisfying the requirements that 182 or more days elapsed since the issuance of the initial dispositional order. MCL 712A.19b(3)(c).
Respondent was charged with domestic violence eight months after the children were removed from his home, and respondent continued communicating with mother after that charge. Further, despite respondent reporting that he was willing to do whatever he needed to get the children back, he failed to go four weeks without contacting mother as requested by the DHHS in order to get unsupervised parenting time with the children, even though there was a court order for him to not contact her. Throughout the entirety of the case, respondent continued to make his toxic relationship with mother his first priority. The trial court found that the children were exposed to "an absolute horrific environment" in respondent's care and that it was "remarkable" that the police were called more than 20 times to the home, sometimes "simply to get things back to a reasonable level in that home." The trial court noted that one of the children strangled a dog in a foster home, and found that this type of behavior would not have resulted from growing up in a stable or satisfactory environment. The trial court said that it was a reasonable conclusion that the children's harmful behaviors were "directly connected to what they saw and what they heard" in respondent's home. The trial court found that those behaviors did not happen because they were removed from respondent, and specifically stated, "Thank God they were removed," explaining that the children would be working through the exposure to domestic violence for the rest of their lives. Furthermore, the trial court found that, though the children were young, they had a long way to go to get where they needed to be, and so did respondent.
In addition, respondent did not address his alcohol abuse until one year after the children were removed from his care and he was put on an alcohol tether through the criminal court, related to violating the bond conditions on his domestic violence charges. According to respondent, he did not feel that his alcohol consumption was an issue until he got in a drunken driving accident and was convicted of operating under the influence (OUI). Even after that, he testified that it was a very normal occurrence for people to get convicted of OUI, and that it "happens all the time." The trial court found that even though respondent "apparently had an epiphany" while he was "in the course of violating the Court's orders, violating the no contact order with [mother], indulging in drinking to excess, getting on the road, driving a car," and making a decision to "get behind the wheel of a 6,000 pound killing machine" because he was "hurting about whatever [he] felt [he was] hurting about," it was not convinced that respondent had changed. The court was not impressed with respondent's "apparent epiphany" because it was after "months of attempting to get [respondent] to take seriously" the services that were provided to him so that he could be reunited with his children. On this record, we find the trial court's skepticism warranted.
The trial court found that respondent did not benefit from services since the DHHS entered the family's life in August 2017. The court found that respondent did not take advantage of the opportunity presented to him when the DHHS set up the safety plan with him in September 2017, after agreeing that his drinking and assaulting mother was bad and that he would stop. The trial court pointed out that respondent "did stop, right up until [he] did it again, and again, and again, and again, and again." The trial court was "completely convinced" that respondent did not take the safety plans seriously. Furthermore, the trial court agreed that respondent "clearly" had mental health issues, which were being addressed and were being improved by medication as of March 2019. However, the court found the problem to be that it took respondent 20 months, losing his children, continued police interaction, a drunken driving accident, two additional criminal charges, and several court violations for respondent to, of his own "free will," address the problem. The trial court found that respondent was "cleaned up" at the final termination hearing and that he was seeing things a "little clearer," but that did not mean the court would ignore all of those other months. The court took the "totality of the circumstances" into consideration, and the "great weight of who [respondent had] been [is] a person who should not be responsible for children."
The court found that the conditions that brought the children into care were "to a great degree" still in effect at the time of termination, and that while it did not question that respondent was in the process of rectifying those conditions, there was no reasonable likelihood that they would be rectified within a reasonable time considering the children's ages. Respondent had not demonstrated a sustained period of sobriety; he was unemployed; he continued interacting with mother, engaging in toxic relationships, and violating court orders; he was arrested and charged with domestic violence yet still did not see his part in the domestic violence incidents; he continued to drink to excess until shortly before the termination trial; he was arrested, pled to OUI, and had his license taken away; he continued to put himself before his children; and he only recently began to address his own mental health issues.
In sum, we are not left with the definite and firm conviction that the trial court erred in fully considering respondent's circumstances up to the date of the termination hearing, and by concluding that the conditions that led to adjudication continued to exist and that there was no reasonable likelihood that respondent could rectify them in a reasonable time. See In re VanDalen, 293 Mich App at 139.
Because we conclude that the trial court did not clearly err by finding one statutory ground for termination of respondent's parental rights, we need not address the additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). On the facts of this case, we are not left with a definite and firm conviction that a mistake has been made, id. at 459, regarding the trial court's finding that MCL 712A.19b(3)(c)(i) was proven by clear and convincing evidence. Therefore, we decline to address the trial court's determination that statutory grounds also existed to terminate respondent's parental rights under MCL 712A.19b(3)(g) and (j).
III. BEST INTERESTS
Respondent next argues that it was not in the children's best interests to terminate his parental rights. We disagree.
After the trial court finds that a statutory basis for termination exists by clear and convincing evidence, the trial court must find by a preponderance of the evidence that termination is in the child's best interests. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). "[This Court] review[s] for clear error the trial court's determination regarding the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). "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 should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App at 713. In considering the child's best interests, the trial court's focus must be on the child and not the parent. In re Moss, 301 Mich App at 87. The 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 Minors, 297 Mich App at 35, 41-42; 823 NW2d 144 (2012) (citations omitted). "The trial court may also consider . . . 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, the possibility of adoption," In re White, 303 Mich App at 714, and the child's safety and well-being. In re VanDalen, 293 Mich App at 142. The trial court may also consider a parent's history of domestic violence. In re White, 303 Mich App at 714. A parent's substance abuse history is also relevant to whether termination is in the child's best interests. In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001). At this stage, the interest of the child in a stable home is superior to any interest of the parent. In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016).
The trial court found that terminating respondent's parental rights was in the children's best interests. Respondent only recently began taking care of his mental health issues, after 20 months of the DHHS's involvement, and proved that he could not provide stability to the children. He consistently chose mother over the children; for example, he had unsupervised visits with GLS and DMS when the children were initially removed, but chose to give them up to work on his relationship with mother in July 2018, then never earned back unsupervised visits. Respondent still refused to take responsibility for his actions and his part in the children's removal, which was evidence that he would continue providing the traumatic environment from which they were removed. Respondent was already beginning new, dramatic relationships, and instead of dealing with them in healthy ways, he was ranting on Facebook. The trial court found that respondent's anger toward women would likely continue to be expressed by physical violence if the opportunity arose. Further, respondent's actions showed that he was still obsessed with mother. The children's safety and well-being would be in danger if returned to respondent's care because his actions showed he was not stable. Additionally, respondent testified that he did not support allowing the children the appropriate medications that the professionals advocated that they needed. The court pointed out that the children would have a lot to work through because of respondent's abuse of mother "without any thought about what these children would glean from that" during their young, formative years. The trial court said that respondent "couldn't have done worse for these kids if [he] had simply taken a belt and beat them [himself] over and over." The trial court stated that in foster care, the children would receive love, treatment, and the opportunity that respondent took away from them by being "selfish, indulgent, hedonistic, foolish," and acting with an "alcohol-addled" mindset.
In regards to the children, the trial court noted that they were on a good track and were making progress toward living the reasonable life that "any human being should expect to be able to have," once they were removed from respondent. The trial court further stated that it was "without question" that the children were "far better off" in their foster homes than they were in respondent's care. The children were beginning to make progress and move beyond the "very harming behaviors" (use of vulgar language, kicking, hitting, biting, punching, sexual inappropriateness, suicidal ideations, etc.) that they initially presented to foster families with. Those behavioral issues created the number of different placements that the children had to go through before they were able to find foster parents who had the ability and opportunity to help them become their best. The court was "not going to derail that." The record reflected that each child was thriving in their foster-care home and was given the opportunity to develop appropriately in a safe, loving environment. The children were bonded to their foster families. The siblings were also afforded sibling visits. TEW and MFS continually voiced their desire to stay with their foster families and to be adopted by them. They also repeatedly said that they did not want to be returned to respondent. The children were all young and the possibility of adoption was great, including potentially by the homes in which they had been placed for a year before the termination trial. See In re White, 303 Mich App at 714. The trial court found that termination of respondent's parental rights was in the children's best interests and was a necessary step in allowing them to have the safety, permanence, and stability to which they are entitled. See In re Hudson, 294 Mich App at 269; 817 NW2d 115 (2011).
In light of the foregoing, we find that there was no clear error in the trial court's conclusion that termination of respondent's parental rights was in the children's best interests. See MCL 712A.19b(5); In re VanDalen, 293 Mich App at 139.
IV. DUE PROCESS RIGHT TO COUNSEL
Respondent argues that the trial court deprived him of his procedural due process rights because the trial court failed to inform him of his right to counsel and forced him to participate in the preliminary hearing without an attorney. We disagree.
Respondent's unpreserved claim is reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). An error generally will not affect substantial rights if it did not affect the outcome of the proceedings. Id. at 9.
Respondents in termination proceedings are afforded the right to counsel. In re Powers, 244 Mich App 111, 121-122; 624 NW2d 472 (2000). MCL 712A.17c(4) states that the trial court shall advise respondents at the first court appearance that they have a right to an attorney at each stage of the proceeding, they have the right to a court-appointed attorney if they are not financially able to afford one, and if they are not represented by an attorney, they have the right to request and receive one at a later proceeding. An "erroneous deprivation of appointed counsel for child protective proceedings can be subject to a harmless error analysis." In re Williams, 286 Mich App 253, 278; 779 NW2d 286 (2009).
Respondent misstates what happened at the initial hearing on April 27, 2018. Despite respondent's contentions otherwise, the trial court advised respondent of his rights pursuant to MCL 712A.17c(4). Respondent was present, and the trial court noted that, although he was not represented by an attorney, he had applied for a court-appointed attorney. Respondent did not qualify for a court-appointed attorney because his income was over the guideline limit. The court addressed respondent, recognizing that he did not have an attorney at that hearing, and asked if he had received a copy of the DHHS's petition. Respondent confirmed that he had. The court then asked respondent if he was willing to waive probable cause and questioned if he knew what probable cause was. Respondent responded, "I'm requesting an adjournment until I have an attorney." The court replied, "Okay. So you're not willing to waive probable cause at today's hearing?" Respondent then said, "I am willing to waive probable cause at today's hearing, yes." The court went on to say that respondent was "still entitled to have an attorney" and that his response did not "necessarily mean that we made a determination," just that the court would authorize the petition to "take a further look" at the situation. The court then set the case for a pretrial hearing and went on to address placement of the children. Therefore, the trial court did, in fact, advise respondent of his right to counsel. Furthermore, there is nothing in the record that suggests that respondent waived probable cause for any reason other than his own desire to do so.
After hearing from the DHHS and the LGAL, the trial court asked respondent if there was anything he wished to say regarding placement and according to the trial court, respondent blamed mother for everything in stating that mother had mental health, alcohol, and substance abuse issues. The trial court stated that the petition was the longest it had ever received and that much of it related to serious domestic violence perpetrated by respondent, so the trial court authorized the removal of the children and ordered placement with the DHHS.
Moreover, respondent hired an attorney and filed an emergency motion for review of placement and parenting time within six days of the preliminary hearing. The trial court held a hearing on May 9, 2018 to address respondent's motion. At that hearing, respondent continued testifying to the exact same story that he indicates the trial court erred in using against him at the preliminary hearing. The trial court specifically stated that it was careful at the preliminary hearing because it was aware that respondent did not have an attorney, but even with an attorney, respondent's statements were troublesome to the court. The trial court found that respondent helped create a toxic situation for the children at home and did not at all accept responsibility for his actions. Further, the court found that respondent had already failed to follow the safety plan and violated the court's orders. Therefore, the trial court denied respondent's motion and ordered that the children remain placed with the DHHS and that parenting time be supervised. As a result, the trial court did not err, and even if it had, such error would be considered harmless. Respondent's lack of counsel at the preliminary hearing did not prejudice respondent, affect his substantial rights, or affect the outcome of the proceeding, considering the trial court made the same findings regarding placement of the children and parenting time six days after the initial hearing, when respondent was represented by counsel. See In re Utrera, 281 Mich App at 8 and In re Williams, 286 Mich App at 278.
Respondent again placed blame on mother, testifying to her drinking binges, cheating, and mental health issues.
Additionally, at a hearing on June 22, 2018, respondent dismissed his motion to review placement for MFS so that MFS could continue to receive the help he needed for significant suicidal concerns. Respondent's attorney expressed that respondent was "really impressed with the foster parents" that were taking care of MFS and TES and said that respondent was willing to leave the issue of whether parenting time should be increased or whether it should be supervised up to the counselor. Respondent's attorney further stated that "to get four kids back all of the sudden, boom, would be impossible for anyone to do, I think, under these circumstances, and so [respondent] understands that it's going to take some transition to—to get to that point where his kids are back home and he's willing to do that." This hearing is further proof that any error at the preliminary hearing where respondent was unrepresented was harmless as respondent ultimately recognized that his children needed help that he could not provide at that time.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola