Opinion
No. 354552
04-29-2021
In re SENIOR, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Tuscola Circuit Court Family Division
LC No. 16-011027-NA Before: O'BRIEN, P.J., and STEPHENS and BOONSTRA, JJ. PER CURIAM.
Respondent-father appeals by right the trial court's order terminating his parental rights to the minor children, HM and CB, under MCL 712A.19b(3)(b)(i), (c)(i), (c)(ii), (g), (j), and (k)(iii). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Respondent-father has a history that includes numerous acts of domestic violence against the children's mother. As summarized by the trial court:
The trial court previously terminated the mother's parental rights. This Court affirmed that decision in In re Senior, unpublished per curiam opinion of the Court of Appeals, issued January 14, 2021 (Docket No. 352838). The mother is not a party to this appeal.
Prior to the filing of the original petition on April 29, 2016, DHHS CPS had been involved with the family. Specifically, . . . CPS had been monitoring the family due to prior law enforcement involvement surrounding domestic violence incidents: two in 2013, one in June 2014[,] and, one in 2016. The family had been afforded a variety of services, including drug screens, Life Skills and case monitoring. These services were put into place to keep the family intact or at least have the children cared for by a parent.
. . . [T]he catalyst that prompted the filing of this case was a domestic violence incident in February 2016 and circumstances surrounding the incident. Specifically, during the district court domestic violence case involving mother and father, mother had indicated that she could not distinguish between "reality and the thoughts in her head", that she could not remember if the domestic violence had actually occurred. Coupled with the substantial CPS history with the family, the prior domestic violence history, the substance abuse history and physical neglect, the Court initially entered an Order to Take the two children . . . and place them with DHHS. However, within hours . . . the Court was able to hold a Preliminary Hearing. While the Court adjourned the hearing for counsel to be present . . . , the Court determined that the children could be released to father.
When father entered his [initial] plea on September 27, 2016, he admitted that he had a criminal history, which included both alcohol offenses and assaultive/battery and/or domestic violence offenses. . . .
In the trial court's opinion, the Department of Health and Human Services (DHHS), and Children's Protective Services (CPS), are often referred to collectively as "DHHS CPS."
In November 2016, petitioner filed a supplemental petition seeking the children's removal from respondent-father's home and placement in foster care based on alleged physical abuse of HM, who was then three years old. At the preliminary hearing, the assigned caseworker, Kevin Zaborney (Zaborney), testified that during a supervised visit the day before, the children's mother had observed and reported "multiple bruises all over [HM's] buttocks[.]" When asked about the bruising, respondent-father told Zaborney that HM "fell down the steps." The mother took both minor children for a medical examination with their usual physician, who discovered no injuries to CB but found "bruising on both sides of [HM's] buttocks extensively[.]" In a forensic interview with Zaborney, HM reported that respondent-father would "spank[] her on her butt" while her pants were on—so forcefully as to cause "severe pain"—and that he was the only person who spanked her. The children's doctor confirmed that the bruising "could be consistent with being spanked" recently with excessive force. A nurse practitioner and a second physician both opined that the observed bruising was neither "accidental" nor "consistent with . . . falling down." After hearing Zaborney's testimony and considering the views of the children's lawyer-guardian ad litem (LGAL), the trial court authorized the supplemental petition, ordered the minor children removed from respondent-father's home and placed in petitioner's care and custody, granted petitioner discretion to place the children in foster care or with the parents pending another hearing, limited respondent-father's parenting time to supervised visits, and retained reunification as the permanency planning goal. Respondent-father eventually pleaded no contest to the allegations in the supplemental petition concerning the spanking of HM.
In early 2017, respondent-father was involved in a motor vehicle accident while driving after drinking alcohol. As a result of the accident, which constituted a probation violation, he was returned to jail. He also suffered cognitive disabilities as a result of head injuries he sustained in the crash.
According to his service providers, respondent-father initially appeared to be making progress on his treatment plan, even while incarcerated. He participated in all of the services available to him and seemed engaged and dedicated to achieving reunification. He was no longer in a violent domestic relationship with the mother, his parenting time was proceeding well before he was incarcerated, and he had made progress toward addressing the issues that had led to adjudication.
In January 2019, respondent-father was paroled from prison. But he was returned to jail within several hours of his release after failing to timely report to his parole officer. After this incident, respondent-father's progress toward reunification began to falter. He became hostile and combative toward caseworkers, failed to accept any responsibility for his actions in this case, and largely refused to cooperate with the children's therapists. In conversations with the therapists and the assigned caseworker, Charles Collis (Collis), respondent father used vulgar language and frequently became angry and argumentative.
At the end of October 2019, respondent-father was released from incarceration and sent to a "half-way house" in Genesee County (because no such housing was then available in Tuscola County); he was eventually transferred to a similar facility in Tuscola County. Before the widespread onset of the COVID-19 pandemic, respondent-father had four supervised visits with the children. Collis and HM's therapist testified that these visits had gone poorly and had particularly caused HM a great deal of anxiety.
In January 2020, the trial court permitted petitioner to file a supplemental petition seeking termination of respondent-father's parental rights due to his lack of progress and failure to benefit from services. Following a three-day termination hearing in July 2020, the trial court entered an order terminating respondent-father's parental rights to the minor children. This appeal followed.
II. REASONABLE EFFORTS TOWARD REUNIFICATION
Respondent-father argues that the trial court clearly erred by finding that petitioner made "reasonable efforts" to reunify him and the minor children, as required under MCL 712A.19a(2). We disagree. We generally review for clear error a trial court's determination that petitioner made sufficient efforts to reunify children with their parent. MCR 3.977(K); In re Fried, 266 Mich App 535, 542; 702 NW2d 192 (2005). But respondent-father failed to timely raise this issue when the trial court adopted his case service plan. Consequently, this issue is unpreserved, see In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012); In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000), and is reviewed for plain error affecting substantial rights, People v Carines, 460 Mich 750; 597 NW2d 130 (1999). See In re Pederson, 331 Mich App 445; 951 NW2d 704 (2020), citing In re Ferranti, 504 Mich 1, 29 n 13; 934 NW2d 610 (2019).
To duly preserve a challenge to the sufficiency of the services offered, a respondent must raise the matter "when the court adopts a service plan[.]" In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012), quoting In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000) ("The time for asserting the need for accommodation in services is when the court adopts a service plan, not at the time of a dispositional hearing to terminate parental rights.").
We recognize that, in In re Hicks/Brown, 500 Mich 79, 89; 893 NW2d 637 (2017), our Supreme Court noted that it was "skeptical of" Frey's "categorical" approach to this question of issue preservation. But Hicks/Brown neither decided the issue nor overruled Frey. Therefore, Frey remains binding upon us. See MCR 7.215(J)(1) ("A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.").
"In general, when a child is removed from the parents' custody, the petitioner is required to make reasonable efforts to rectify the conditions that caused the child's removal by adopting a service plan. MCL 712A.18f(1), (2), and (4)." Fried, 266 Mich App at 542. Moreover, "with limited exceptions"—none of which are at issue here—MCL 712A.19a(2) requires that "[r]easonable efforts to reunify the child and family must be made in all cases." Frey, 297 Mich App at 247. A respondent's claim that reasonable services were not offered ultimately relates to the sufficiency of the evidence for termination of parental rights. Fried, 266 Mich App at 541, citing In re Newman, 189 Mich App 61, 66; 472 NW2d 38 (1991); see also In re Hicks/Brown, 500 Mich 79, 90; 893 NW2d 637 (2017) ("termination is improper without a finding of reasonable efforts"). While petitioner "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of respondents to participate in the services that are offered." Frey, 297 Mich App at 248.
Respondent-father argues that "caseworkers did not visit or communicate with" him while he was incarcerated, but this argument is not supported by the record. At numerous review hearings and permanency planning hearings, Collis testified—at considerable length—about his visits with the incarcerated respondent-father, their written correspondence, and their telephone conversations.
Respondent-father further argues that caseworkers failed to make sufficient efforts to identify and provide services, "both inside and outside of prison," to assist respondent-father in achieving reunification. During the termination proceedings, it was undisputed that respondent-father had, in fact, completed numerous services—both while incarcerated and after his parole—including individual therapy, domestic-violence classes, and substance-abuse classes. Respondent-father also received governmental housing assistance while on parole, along with assistance in locating employment. Additionally, Collis testified that he provided respondent-father with a "very lengthy packet" of resources to assist him shortly after he was paroled, and respondent-father does not identify any additional service(s) that should have been offered. Further, the trial court noted that, despite the evidence concerning the numerous services in which he had participated, "[respondent-father's] actions d[id] not reflect a benefit from these services." In light of that finding, and in light of respondent-father's failure to specify what additional service (or services) petitioner should have offered him, respondent-father has failed to carry his burden of demonstrating plain error that affected his substantial rights. Carines, 460 Mich at 763. Without stating what additional services should have been offered or how they might have benefited him, respondent-father cannot carry his burden of establishing that an error occurred or that it was outcome-determinative. Id.
Respondent-father also argues that petitioner failed to make reasonable efforts to facilitate parenting time for him while he was incarcerated for a seven-month period beginning in July 2017 and ending in February 2018. However, respondent-father admits that, following the August 8, 2017 review hearing, the trial court entered an order suspending his parenting time while he was incarcerated. Petitioner's duty to make reasonable efforts toward reunification did not require it to disobey the trial court's orders. See In re Contempt of Dudzinski, 257 Mich App 96, 111; 667 NW2d 68 (2003) ("A person may not disregard a court order simply on the basis of his subjective view that the order is wrong or will be declared invalid on appeal."). In any event, respondent-father cannot demonstrate that he was prejudiced by any lack of efforts from petitioner during this time period. He admits that the cessation of his parenting time lasted only seven months, ending in February 2018—i.e., over two years before the termination of his parental rights. Given that respondent-father was permitted parenting time in various formats thereafter—and had the opportunity to correspond with his children in writing even during the seven-month timeframe—he has failed to carry his burden of demonstrating that the temporary disturbance in his parenting time was outcome-determinative. Carines, 460 Mich at 763. Respondent-father's related argument that petitioner failed to make reasonable efforts to ensure his ability to communicate by phone with his children while incarcerated fails for similar reasons. Although the record shows that funding issues and difficulties obtaining compliance by jail officials with the court's orders impacted respondent-father's ability to make regular phone calls during the seven months in which he was incarcerated, the majority of those difficulties were beyond the control of petitioner. And in any event, respondent cannot demonstrate that this difficulty was outcome-determinative. Id.
Respondent-father has failed to demonstrate that petitioner did not make reasonable efforts toward reunification.
III. STATUTORY GROUNDS FOR TERMINATION
Respondent-father also argues that the trial court clearly erred by finding clear and convincing evidence in support of at least one statutory ground for termination. We disagree.
We review for clear error a trial court's determination that grounds for termination have been proven by clear and convincing evidence. In re Medina, 317 Mich App 219, 236; 894 NW2d 653 (2016). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made," with the reviewing court "defer[ring] to the special ability of the trial court to judge the credibility of witnesses." In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014). We review de novo issues of statutory interpretation. Id.
"To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). Only one statutory ground for termination need be proven for a trial court to order termination of parental rights. Id. Here, the trial court found that the grounds for termination articulated in MCL 712A.19b(3)(b)(i) (physical injury or abuse), (c)(i) (conditions that led to the adjudication continue to exist), (c)(ii) (other conditions exist and have not been rectified), (g) (failure to provide proper care and custody), (j) (reasonable likelihood of harm if returned to the parent), and (k)(iii) (battering, torture, or several physical abuse) had been proven by clear and convincing evidence.
Focusing on MCL 712A.19b(3)(j), we conclude that the trial court did not clearly err by finding that grounds for termination had been proven by clear and convincing evidence. Termination is appropriate under Subsection (3)(j) if "[t]here 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." Respondent-father's sole argument concerning this subsection presumes that the only relevant risk to the children is the risk of physical harm. Specifically, respondent-father contends that, under Subsection (3)(j), petitioner is required to demonstrate that the child in question will suffer "an unreasonable risk of serious abuse or death" if returned to the parent's household. We disagree with that interpretation of the statute.
In support of his position, respondent-father cites In re Mason, 486 Mich 142, 165; 782 NW2d 747 (2010); In re Pops, 315 Mich App 590, 600; 890 NW2d 902 (2016); In re McCarrick/Lamoreaux, 307 Mich App 436, 464; 861 NW2d 303 (2014); and In re Boursaw, 239 Mich App 161, 169; 607 NW2d 408 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341, 353 n 10 & n 12 (2000). However, none of these cases supports respondent's argument. Mason is inapposite because it did not hold, as respondent suggests, that "an unreasonable risk of serious abuse or death" is necessary to terminate parental rights under Subsection (3)(j); rather, our Supreme Court merely stated, when construing a different statutory provision, that "termination solely because of a parent's past violence or crime is justified only under certain enumerated circumstances, including when the parent created an unreasonable risk of serious abuse or death of a child[.]" Mason, 486 Mich at 165. Similarly, this Court in McCarrick/Lamoreaux was not tasked with construing the word "harm" in the context of Subsection 3(j), but instead merely discussed a dictionary definition of "harm" in construing the phrase "serious emotional or physical damage" as found in in provisions of the Indian Child Welfare Act, 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act, MCL 712B.1 et seq. McCarrick/Lamoreaux, 307 Mich App at 463-465. To the extent that McCarrick/Lamoreaux is relevant, the definition adopted by this Court in that case explicitly contemplates emotional harm, damage, or injury. Id. And in Pops, this Court merely noted, under Mason, that a respondent's past criminal record does not itself justify termination of a respondent's parental rights unless other factors are present. Pops, 315 Mich App at 600-601.
Further, while this Court in Boursaw did discuss the lack of physical harm to the child when concluding that the trial court had erred by holding that the statutory grounds found in subsection (3)(j) were proven, we did not establish a bright-line rule that the harm contemplated by Subsection (3)(j) must be physical in nature. See Boursaw, 239 Mich App at 169 ("Of the two grounds cited by the circuit court, we are most puzzled by the court's reliance on subsection 19b(3)(j). There is no evidence in the record that respondent ever struck or purposefully harmed the child in any way. Rather, the court based its conclusion on what it characterized as respondent's 'poor judgment.' Unfortunately, the court failed to specify what 'judgments' it was concerned about."). On the other hand, this Court has clearly and recently stated that, for purposes of subsection (3)(j), "the harm in question need not be physical; a 'risk of emotional harm' can suffice." In re Pederson, 331 Mich App at 473, quoting In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011).
The trial court accordingly did not clearly err by concluding that subsection (3)(j) supported termination of respondent-father's parental rights. Even if there was insufficient evidence concerning a risk of physical harm to the minor children, there was ample evidence to find a reasonable likelihood, based on the conduct or capacity of respondent-father, that the minor children would suffer emotional harm if they were returned to his home. Respondent-father admitted that he was not currently able to care for his children at the time of the termination hearing. Respondent-father had also tested positive for cocaine during the pendency of these proceedings, had violated his probation by using alcohol and crashing his car, and had, in one instance, violated the conditions of his parole mere hours after his release. The record shows a substantial risk that respondent-father's criminality and substance abuse would result in him being returned to prison or worse. Further, respondent-father continually displayed a volatile temper that he was unable to control in his interactions with other adults, and respondent-father has a history of domestic violence against the children's mother. Moreover, on at least one occasion, respondent-father caused severe bruising to HM while attempting to discipline her with corporal punishment. The children's respective therapists indicated that the children suffered emotional harm and with manifested physical symptoms such as stomach aches from merely contemplating supervised visits with respondent-father; HM also repeatedly verbalized that she was afraid of him. Accordingly, there is evidence that the children were reasonably likely to suffer harm if returned to respondent-father's care. The trial court did not clearly err by making this determination. Ellis, 294 Mich App at 32.
Having concluded that at least one statutory ground for termination was satisfied by clear and convincing evidence, we need not decide whether the trial court clearly erred by relying on the other cited statutory grounds. Ellis, 294 Mich App at 32. --------
IV. BEST-INTEREST DETERMINATION
Finally, respondent-father argues that the trial court clearly erred by determining that termination was in the best interests of each of the minor children. We disagree.
We review for clear error a trial court's best-interest determination. In re Medina, 317 Mich App at 236. "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made," with the reviewing court "defer[ring] to the special ability of the trial court to judge the credibility of witnesses." In re LaFrance, 306 Mich App at 723.
MCL 712A.19b(5) provides: "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." See also Medina, 317 Mich App at 237. "In making its best-interest determination, the trial court may consider the whole record, including evidence introduced by any party." Id. at 237 (quotation marks and citation omitted).
[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. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61 (2014).]
In its written opinion, the trial court thoroughly addressed the best interests of each child individually. We see no basis for disturbing the trial court's well-reasoned best-interest analysis. As noted by the trial court, respondent-father admitted that he had no bond with CB, whereas the child is strongly bonded to his foster parents, who are the only "mommy and daddy" with whom he remembers living. And while it is true that respondent-father and HM have a type of bond, "the parent-child bond is a blade that is capable of cutting both ways; whether it benefits or harms a child depends on how the parent wields it." See Pederson, 331 Mich App at 477; accord Medina, 317 Mich App at 240 ("Respondent argues that '[k]nowing who one's biological father is and having a relationship with him have intrinsic value.' In a Utopian world, that might be true. But ours is an imperfect world, and the 'value' a child derives from the parent-child relationship is not, as respondent suggests, universally positive; if it were, there would be little need for child protective proceedings."). In this case, HM's relationship with respondent-father is a consistent source of trauma and distress for her, causing her to distance herself from respondent-father emotionally. For instance, when her therapist asked HM "to draw a picture of a positive memory with her dad," she drew a picture of her foster father. And when the therapist clarified, asking for a picture involving respondent-father, HM indicated that she could not recall a positive memory involving respondent-father. The trial court's determination that the children were not healthily and positively bonded to respondent-father, if bonded at all, was supported by the record and was not clearly erroneous. Medina, 317 Mich App at 237.
The trial court also held that the foster family's household holds clear advantages over respondent-father's. This finding was supported by the record, which shows that the foster family provides a loving, stable household supported by legal income. On the other hand, respondent-father was currently residing in transitional housing and lacked a permanent residence, despite receiving housing assistance and related services. Respondent-father also has a history of substance abuse, violence, and criminality, has ongoing "cognitive disabilities" that he suffered in a car crash while driving under the influence, and lacks a driver's license or any means of transportation aside from a bicycle. The trial court did not clearly err by determining that it was in the children's best interests to remain in their current environment. Id.
In sum, we find no error in the trial court's well-reasoned and well-written conclusion that termination of respondent-father's parental rights was in the best interests of both children. Id.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Cynthia Diane Stephens
/s/ Mark T. Boonstra