Opinion
No. 349145
02-20-2020
In re K. D. SELLERS, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 13-514864-NA Before: GLEICHER, P.J., and GADOLA and LETICA, JJ. PER CURIAM.
Respondent-mother appeals as of right the order terminating her parental rights to the minor child, KS, under MCL 712A.19b(3)(g) (failure to provide proper care and custody), (i) (parental rights to one or more siblings terminated because of chronic and serious neglect or abuse that the parent has failed to rectify), (j) (reasonable likelihood that child will be harmed if returned to parent), and (l) (parental rights to one or more siblings terminated because of neglect or abuse). We affirm.
The father, whose parental rights the trial court also terminated, is not a party to this appeal.
On the record, the trial court stated that termination of respondent's parental rights was based on MCL 712A.19b(3)(c)(i), (g), (j), and (l); however, the court's written order states termination was based on (g), (i), (j), and (l). Because a court speaks through its written orders rather than its oral pronouncements, we limit our review to the statutory grounds listed in the trial court's order. In re KMN, 309 Mich App 274, 287; 870 NW2d 75 (2015).
I. BACKGROUND
Petitioner, the Department of Health and Human Services (DHHS), filed an original petition for termination of respondent's parental rights to KS. Petitioner asserted that respondent was previously involved in child protective proceedings pertaining to three of KS's older siblings. Specifically, respondent's parental rights to those three children were terminated after they came into care for medical neglect, an unfit home, domestic violence, and substance abuse, and respondent failed to comply with the treatment plan. One of respondent's older children was also born marijuana-positive. Although the trial court determined that petitioner had proven the statutory ground for termination under MCL 712A.19b(3)(i), it concluded that termination was not in KS's best interests at that time. The trial court ordered that KS continue as a temporary court ward. The trial court later adopted a treatment plan for respondent's reunification with KS.
This Court affirmed the trial court's earlier orders terminating respondent's parental rights to KS's older siblings. In re Grant/Sellers and In re PD Sellers, unpublished per curiam opinion of the Court of Appeals, issued July 25, 2017 (Docket Nos. 335552, 336160, and 336161).
Under the treatment plan, respondent was required to submit to weekly drug screens, undergo a psychological evaluation, and attend parenting classes, individual therapy, and substance abuse assessments. Respondent was also required to maintain a legal source of income and suitable housing, keep in contact with a parent-support partner, and attend all court hearings and supervised visits.
Over the course of approximately one year, respondent failed to substantially comply with the treatment plan. Although respondent completed parenting classes, she failed to complete substance abuse treatment. Respondent failed to interact with her parent-support partner. Respondent also inconsistently attended the parenting time visits with KS. Moreover, when respondent attended visits she appeared to be under the influence of marijuana as evidenced by her dilated eyes and slurred speech. In August 2018, after respondent obtained a medical marijuana card for her chronic back pain, she indicated that she did not believe she had to attend drug screenings or counseling any further.
In that same month, petitioner filed a supplemental petition for termination of respondent's parental rights. After a two-day hearing, the trial court opined that respondent "remained substantially non-compliant with the necessary services for reunification throughout th[e] case," and had not substantially benefited from services. The trial court concluded that respondent continued to be "unfit to properly parent the child" and termination of respondent's parental rights was in KS's best interests. The trial court thus terminated respondent's parental rights to KS under MCL 712A.19b(3)(g), (i), (j), and (l). This appeal follows.
See footnote 2.
II. STATUTORY GROUNDS
Respondent argues that there were no statutory grounds supporting the termination of her parental rights. Because termination was proper under at least one statutory ground, we disagree.
"[O]nly one statutory ground for termination need be established[.]" In re Schadler, 315 Mich App 406, 410; 890 NW2d 676 (2016).
Even so, we note that MCL 712A.19b(3)(g), (i), and (l) were amended, effective June 12, 2018. See 2018 PA 58. Under the prior version of subsection (g), the trial court could terminate parental rights when " '[t]he parent, without regard to intent, fails to provide proper care or custody for the child[.]' " See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quoting the previous version of MCL 712A.19b(3)(g)). The current version of subsection (g) permits termination when "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child[.]" In August 2018, petitioner moved to terminate respondent's parental rights under the preamendment versions of subsections (g), (i), and (l). Despite this, we conclude that we may analyze the trial court's ruling under subsection (i) as the amendment altered the statutory language while maintaining the requirement that the parent's behavior fails to improve despite intervention. Compare former MCL 712A.19b(3)(i) ("Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.") with the current version of subsection (i), which retained the language from the introductory clause, but revised the second clause to read "and the parent has failed to rectify the conditions that led to the prior termination of parental rights." However, because petitioner never moved to amend the termination petition, respondent lacked notice that petitioner was proceeding under the postamendment versions of (g) and (l). Moreover, the trial court made no specific factual findings on the record regarding respondent's financial ability for purposes of termination under subsection (g) and this Court held that the preamendment version of subsection (l) was unconstitutional. See In re Gach, 315 Mich App 83, 100101; 889 NW2d 707 (2016). For these reasons, we decline to affirm the trial court's termination of respondent's parental rights based on MCL 712A.19b(3)(g) and (l).
"This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established[.]" In re Schadler, 315 Mich App at 408 (quotation marks omitted). Statutory grounds for termination must be established by clear and convincing evidence. Id. A factual finding is clearly erroneous "if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." Id. (quotation marks omitted).
MCL 712A.19b(3)(i) provides that the trial court may terminate parental rights if:
Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.
Respondent argues that her prior terminations did not involve serious and chronic neglect or physical or sexual abuse. We disagree.
Review of the record reflects that serious and chronic neglect led to respondent's prior terminations and that she failed to rectify the conditions leading to those terminations. In 2013, respondent's oldest child, who had Down Syndrome and a heart condition, and her second oldest child came to the court's attention as the result of medical neglect for her oldest child, and physical neglect, lack of suitable housing, domestic violence, and substance abuse, namely, marijuana, as to both children. Respondent's court ordered treatment plan involved parenting classes, individual and family therapy, obtaining legal income, and substance abuse counseling. Respondent received assistance with housing and employment. However, respondent failed to consistently participate in services or failed to benefit from them. In part, respondent continued to use marijuana and failed to regularly visit her children. After nearly three years, the court terminated respondent's parental rights to her first two children in October 2016. Eight months later, KS was born.
In November 2018, the caseworker testified that respondent had not completed or regularly attended substance abuse counseling. Moreover, after respondent obtained her medical marijuana card in August 2018, about thirteen months after KS came into care, respondent stopped attending substance abuse treatment until after the initial termination hearing date. Pursuant to MCL 333.26424(d), "[a] person shall not be denied custody or visitation of a minor for acting in accordance with [the Michigan Medical Marihuana Act (MMMA)], unless the person's behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated." In other words, when a respondent is a registered patient who is compliant with the MMMA's requirements, "there must be some showing of harm or actual risk of harm that results from the parents' acts" before termination is appropriate. In re Richardson, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 346903); slip op at 12. See also In re LaFrance, 306 Mich App 713, 731; 858 NW2d 143 (2014) ("[D]rug use alone, in the absence of any connection to abuse or neglect, cannot justify termination solely through the operation of the doctrine of anticipatory neglect.").
Here, for a majority of the time that KS was in care, respondent did not have a medical marijuana card. In fact, respondent said that if KS was returned to her care, she would cease using marijuana. And respondent appeared at visitations under the influence of marijuana to the point that she slurred her words. This demonstrated that respondent's marijuana use impacted her ability to parent and provide proper care. Compare Richardson, ___ Mich App at ___; slip op at 12 ("There was no evidence that mother was impaired or 'high' during her parenting time visits[.]"). Recognizing that respondent's marijuana usage alone is not adequate to terminate her parental rights, there was evidence that it impacted her ability to parent KS. Thus, the trial court did not clearly err when it concluded that respondent had failed to rectify one of the conditions that had led to her previous terminations.
Moreover, termination of respondent's parental rights was not solely due to her marijuana usage. The trial court also properly terminated respondent's parental rights because she did not fully comply with, or benefit from, the treatment plan or any other services during this termination, just as she failed to comply with the treatment plan in the earlier proceeding. See Gach, 315 Mich App at 94-95. Respondent's treatment plan was designed to rectify the conditions that led to the termination of her parental rights to her older children. As with those children, respondent failed to attend the majority of the visitations with KS, and had only attended approximately 30% of them by November 2018. By February 2019, when the visits had been moved closer to respondent, she had only attended four out of nine visits.
Respondent also failed to attend individual therapy to address her unresolved mental health issues. Respondent further had issues identifying her own needs and providing for her basic daily needs. Respondent's lifestyle was "transient" and she had only recently obtained and furnished her public housing. Thus, although respondent had made some progress at the time of termination, her failure to substantially comply with or benefit from the treatment plan over the course of over one year demonstrated that she had failed to rectify the conditions that led to the previous termination of her parental rights. And while respondent is correct that not all of the conditions surrounding her earlier terminations are present here, subsection (i) does not require the conditions be identical. Rather, it is sufficient that they are conditions that led to the earlier termination and they persist. Accordingly, the trial court did not err by finding that there was clear and convincing evidence to terminate respondent's parental rights to KS under MCL 712A.19b(3)(i).
Because one ground is sufficient to support termination, we need not analyze whether termination under MCL 712A.19b(3)(j) was appropriate. See footnotes 2 and 5. --------
III. BEST INTERESTS
Respondent argues that the trial court erred by finding that termination of her parental rights was in KS's best interests because she presented evidence of progress in her parenting ability and was a loving and attentive mother. We disagree.
Termination of parental rights must be ordered if the trial court finds that a statutory basis for termination has been established by clear and convincing evidence, "and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child[.]" In re Schadler, 315 Mich App at 408. We also review the trial court's best interests determination for clear error. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). " 'A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.' " In re Schadler, 315 Mich App at 409 (citation omitted).
"In deciding whether termination is in the child's best interests, 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, 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. When the trial court considers a child's best interests, the focus must be on the child and not the parent. In re Moss, 301 Mich App 76, 87-88; 836 NW2d 182 (2013).
Here, the trial court focused primarily on the lack of a bond between respondent and KS and respondent's failure to attend parenting time. The trial court observed that respondent missed visits and showed "severely limited parenting skills." The trial court opined that KS was thriving in his foster placement, and concluded that termination of respondent's parental rights was in KS's best interests.
We find no clear error. Respondent missed five out her nine most recent parenting time visits and attended approximately 30% of her scheduled parenting time. There was little evidence that respondent had benefited from the treatment plan or that she sufficiently improved her parenting skills. Further, the record demonstrated that KS, who had been in foster care within weeks of his birth, was thriving in his placement with his foster family and had bonded with them, including his biological siblings that were in the same foster home. In contrast, KS had not bonded with respondent. Indeed, although respondent was affectionate towards KS, there was evidence that KS was excited to return to his foster family after respondent's visits and that he slept for abnormally long periods after visitations. KS's foster home further provided him with the stability and permanence that he needed. Accordingly, the trial court did not err by finding that termination of respondent's parental rights was in KS's best interests.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
/s/ Anica Letica