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In re Sharrard

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 336021 (Mich. Ct. App. Jul. 18, 2017)

Opinion

No. 336021

07-18-2017

In re SHARRARD, Minors.


UNPUBLISHED Bay Circuit Court Family Division
LC No. 00-007077-NA Before: SERVITTO, P.J., and MURRAY and BORRELLO, JJ. PER CURIAM.

Respondent-mother appeals as of right the trial court's order terminating her parental rights to her children, NS and CS, pursuant to MCL 712A.19b(3)(b)(i), (c)(i), (c)(ii), (g), (j), (i), and (l). We affirm.

Respondent argues that the trial court erred in finding that each of the cited statutory grounds for termination were established by clear and convincing evidence. Before a court can terminate a parent's rights to his or her child, the court must find that one or more of the statutory grounds for termination listed in MCL 712A.19b(3) have been established by clear and convincing evidence. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). This Court reviews for clear error a trial court's decision that a statutory ground for termination has been proven by clear and convincing evidence. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). "A finding of fact is clearly erroneous where the reviewing court is left with a definite and firm conviction that a mistake has been made." In re Terry, 240 Mich App 14, 22; 610 NW2d 563 (2000). "[T]his Court accords deference to the special opportunity of the trial court to judge the credibility of the witnesses." In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005).

The trial court found that grounds for terminating respondent's parental rights were established under MCL 712A.19b(3)(b)(i), (c)(i), (c)(ii), (g), (i), (j), and (l), which permit termination of parental rights under the following circumstances:

(b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:

(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.

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(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:

(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.

(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.


* * *

(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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(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.

(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.


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(l) The parent's rights to another child were terminated as a result of proceedings under [MCL 712A.2(b)] or a similar law of another state.
We conclude that the trial court erred in relying on §§ 19b(3)(b)(i), (i), and (l) as grounds for terminating respondent's parental rights, but that these errors are harmless because clear and convincing evidence supports termination of respondent's parental rights under §§ 19b(3)(c)(i), (c)(ii), (g), and (j).

It is undisputed that respondent's parental rights to two other children were previously terminated in 2001. However, we decline to uphold the trial court's decision on the basis of its application of §§ 19b(3)(i) and (l) to respondent. Although we are not persuaded by respondent's argument that § 19b(3)(l) cannot apply where the respondent's parental rights to another child were previously terminated and the child at issue in the current proceeding was a "sibling" of the child involved in the prior proceeding, we note that § 19b(3)(l) was declared unconstitutional in In re Gach, 315 Mich App 83, 98-101; 889 NW2d 707 (2016) (holding that the statute fails to comport with due process because it permits termination of parental rights solely on the basis of a prior termination, and thereby creates a presumption of unfitness with no fair way to rebut the presumption). And, although § 19b(3)(i) is not similarly constitutionally deficient, id. at 98, the trial court in this case failed to make necessary findings in support of its application of § 19b(3)(i) to respondent. Specifically, the court did not find that the prior termination was "due to serious and chronic neglect or physical or sexual abuse" or that "prior attempts to rehabilitate [respondent had] been unsuccessful." Without these necessary findings, the trial court's reliance on § 19b(3)(i) was not justified. As further explained below, however, the trial court's reliance on §§ 19b(3)(i) and (l) does not require reversal because the trial court properly found that other grounds for termination were established by clear and convincing evidence.

We also agree that the trial court erred in citing § 19b(3)(b)(i) as a basis for terminating respondent's parental rights. That subsection applies only when the respondent is the parent who committed the alleged physical or sexual abuse. The trial court did not find that respondent physically or sexually abused a child or sibling. Instead, it found that the children were sexually abused by their stepfather, and that respondent failed to protect the children from that abuse. It appears that the trial court may have intended to instead rely on § 19b(3)(b)(ii), which applies where "[t]he parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent's home." If the trial court had relied solely on § 19b(3)(b)(i) as a statutory basis for termination, remand for clarification of the trial court's ruling might be called for. However, because the trial court's decision is supported by other statutory grounds, any error in citing § 19b(3)(b)(i) as a basis for terminating respondent's parental rights is also harmless. Therefore, remand is not necessary.

The trial court did not clearly err in finding that § 19b(3)(c)(i) supported termination of respondent's parental rights. The conditions that led to the initial adjudication involved respondent's lack of suitable housing, in particular her inability to remain current with her utility payments. She also failed to provide proper mental health care for NS. Allegations of drug misuse, coupled with a concern that respondent was not taking her own medications, were also concerns related to the initial adjudication. Respondent failed to correct these conditions throughout the time the children were in care. Petitioner's caseworker, Heather Baker, testified that respondent's parent-agency agreement included substance abuse treatment, mental health services, random drug screening, parenting time, parenting skills classes, a psychological evaluation and mental health counseling. Respondent did not complete a psychological evaluation. She was "very inconsistent" with drug screens and completed less than a third of them from March 2015 through March 2016. Respondent tested negative for her mental health medications, and her demeanor during meetings or on the phone showed that she was not emotionally stable. Respondent also told Baker that she did not want to participate in counseling, and only attended case management services. Respondent did not participate in parenting classes or other programs through Adoption Option (AOI) or the YMCA. Respondent also continued to have problems with housing, and she failed to complete forms needed to obtain financial assistance. According to Baker, respondent was told at the September 2015 hearing that the DHHS would assist her if she wanted to re-engage in services, but she did not do so. With respect to earlier services, Holy Cross employee Barbara Miller stated that respondent had refused assistance with housing and with paying her Consumer's Energy bill.

Baker visited respondent's home in March 2016 and found that it was not suitable. It did not have utilities, it smelled of dog feces and urine, and it was very unkempt. Caseworker Marcy Hills testified that, other than the pets and pet odor, the home was "habitable" when she visited it in May 2016, but there were other individuals living in the home and they had not been "checked." At that time, returning the children to respondent was not a viable option because of the previous and ongoing issues involving respondent, who still did not take responsibility for the children's removal and continued to blame their removal on NS.

Hills also testified that while respondent presented documentation indicating that she had completed some parenting classes at M.P.A., she had not completed enough classes to pass the course. Hills offered respondent services, but respondent said she was very busy and was already doing everything she could to get the children back. However, when Hills looked at respondent's appointment schedule, respondent had only a few appointments scheduled. Hills obtained respondent's counseling record with M.P.A., which revealed that she was discharged twice due to a pattern of no-shows.

The foregoing evidence indicates that respondent had made very little progress since the adjudication. Much of the testimony involved respondent's failure to visit the children, particularly NS, and she essentially abandoned them during a portion of the proceedings, despite the DHHS's and Holy Cross's attempts to provide transportation services. Although respondent had completed some parenting classes, she did not benefit from them. Her home continued to be unsuitable for the children's return. She acknowledged that she had not been consistent with therapy, and had not completed substance abuse classes. She failed to take advantage of many of the services that were offered. The trial court did not clearly err in finding that the conditions that led to the adjudication had not been resolved and, considering respondent's lack of progress, they were not reasonably likely to be resolved within a reasonable period of time. Accordingly, the trial court did not clearly err in finding that the requirements of § 19b(3)(c)(i) were established by clear and convincing evidence.

The trial court relied on the revelation of the children's sexual abuse by their stepfather, and respondent's failure to protect the children from that abuse, as the "other condition" supporting termination under § 19b(3)(c)(ii). Respondent's only argument concerning this ground is that the stepfather's sexual abuse of the children, and respondent's knowledge of that sexual abuse, was based on inadmissible hearsay. Preliminarily, we note that respondent did not object to any testimony concerning the stepfather's sexual abuse or respondent's knowledge of that abuse. Therefore, this claim of evidentiary error is not preserved, and respondent is not entitled to relief absent a showing of plain error affecting respondent's parental rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).

Respondent correctly notes that, generally, when termination is based on "grounds new or different from those that led the court to assert jurisdiction over the children, the grounds for termination must be established by legally admissible evidence." In re Jenks, 281 Mich App 514, 516; 760 NW2d 297 (2008), citing MCR 3.977(F)(1)(b). In this case, an investigating police officer testified that he interviewed respondent regarding the stepfather's sexual abuse, and respondent admitted knowing about the abuse and continued living with the children's stepfather. This evidence supports the trial court's finding that respondent failed to protect the children from sexual abuse, and the testimony was not based on inadmissible hearsay. Under MRE 801(d)(2)(A), a statement is not hearsay if "[t]he statement is offered against a party and is . . . the party's own statement, in either an individual or a representative capacity." Because the testimony concerning respondent's admissions involved respondent's own statements and those statements were offered against her, they did not constitute inadmissible hearsay. Thus, the admission of other testimony disclosing respondent's knowledge of the stepfather's sexual abuse, even if hearsay, did not affect respondent's substantial rights.

In addition, with respect to other new grounds for termination, significant evidence was presented that respondent essentially abandoned her children from June through December 2015, and only sporadically visited NS before June. Although she claimed she was unable to visit them, which is doubtful, she could have had other contact with them. She promised to write letters, but then failed to follow through, even after being advised how NS had been negatively affected by having his hopes repeatedly raised and then dashed by respondent's failure to attend visits or write letters. The trial court did not clearly err in finding that § 19b(3)(c)(ii) had been proven by clear and convincing evidence.

We also reject respondent's argument that the trial court erred in finding that grounds for termination were established under §§ 19b(3)(g) and (j). With respect to § 19b(3)(g), a parent's failure to comply with a parent-agency agreement is evidence of that parent's failure to provide proper care and custody for the child. In re Trejo, 462 Mich at 360-363. As discussed earlier, respondent did not comply with her agreement. Also, considering the report of respondent's current unsuitable housing situation, the trial court did not clearly err in finding that she could not provide proper care and custody of the children. Considering respondent's lack of progress and the length of time the children had been in care, the trial court did not clearly err in finding that there was no reasonable expectation that she would be able to provide proper care and custody within a reasonable time.

The testimony that the children told respondent about the stepfather's sexual abuse and that she did not act to keep the children away from the stepfather supports the trial court's reliance on § 19b(3)(j). As discussed earlier, respondent's acknowledgement to a police officer of her awareness of the abuse was admissible under MRE 801(d)(2)(A). In addition, the harm to the children contemplated under § 19b(3)(j) includes emotional harm as well as physical harm. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). Significant evidence was presented that respondent essentially abandoned her children from June through December of 2015, and that NS had been significantly emotionally affected by respondent's repeated unfulfilled promises to him, and by her continued placement of blame on him for their removal. Moreover, the evidence indicated that respondent had not benefited from her parenting classes. NS's mental health problems were well documented, and respondent had previously failed to obtain treatment for him or deal with his mental health issues. There was no basis for believing that she could or would do so in the future. Therefore, the trial court did not clearly err in finding that he would likely be harmed if returned to respondent's home.

In sum, clear and convincing evidence supports the trial court's determination that statutory grounds for termination were established under §§ 19b(3)(c)(i), (c)(ii), (g), and (j).

Respondent also argues that the trial court erred in its consideration of the children's best interests under MCL 712A.19b(5). We disagree.

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.

Whether termination of parental rights is in a child's best interests is determined by a preponderance of the evidence. In re Olive/Metts, 297 Mich App at 40. Factors to be considered 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." Id. at 41-42 (citations omitted). A court may also consider whether it is likely "that the child could be returned to her parents' home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). A trial court's decision regarding a child's best interests is also reviewed for clear error. In re Trejo, 462 Mich at 356-357.

Respondent argues that the trial court erred by failing to consider CS's relative placement with his grandmother. In In re Olive/Metts, 297 Mich App at 43, this Court held that a trial court must explicitly consider and address a child's placement with relatives before terminating parental rights, stating

However, because "a child's placement with relatives weighs against termination under MCL 712A.19a(6)(a)," the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests. Although the trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child's best interests, the fact that the children are in the care of a relative at the time of the termination hearing is an explicit factor to consider in determining whether termination was in the children's best interests. A trial court's failure to explicitly address whether termination is appropriate in light of the children's placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal. [Quotations and citations omitted.]
In this case, the trial court did consider CS's placement with his grandmother, but noted that this placement setting had not been successful and was no longer a viable option. The record supports this finding. The record discloses that the grandmother was unable to manage CS and that she was in agreement with the recommendation that both CS and NS be placed together in foster care, but allowed to visit the grandmother and their siblings. Because CS's continued placement with his grandmother was no longer an option, respondent's claim of error is without merit.

We also reject respondent's argument that the trial court erred by failing to separately consider NS's best interests. The trial court is generally required to decide the best interests of each child separately. In re Olive/Metts, 297 Mich App at 42. Contrary to respondent's argument, the trial court specifically discussed why it would be in NS's best interests to terminate respondent's parental rights. The trial court discussed how NS had been emotionally affected by respondent's vacillation in meeting his emotional needs. The court further discussed how respondent had repeatedly blamed NS for the children's removal and that "he will probably never get over that." The court also recognized that NS remained in residential care. Thus, it is clear that the trial court individually considered NS's best interests by denoting how respondent's past conduct had harmed him, and explaining why it was in his best interests to terminate respondent's parental rights. The trial court did not clearly err in finding that NS had been traumatized by the continued instability stemming from respondent's intermittent involvement in his life, and that termination of respondent's parental rights would serve his best interests by providing him with the stability he desperately required. This claim of error is without merit.

In In re White, 303 Mich App 701, 715; 846 NW2d 61 (2014), this Court explained that a trial court need only separately consider the best interests of each child if their interests are "significantly" different. --------

Affirmed.

/s/ Deborah A. Servitto

/s/ Christopher M. Murray

/s/ Stephen L. Borrello


Summaries of

In re Sharrard

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 336021 (Mich. Ct. App. Jul. 18, 2017)
Case details for

In re Sharrard

Case Details

Full title:In re SHARRARD, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Jul 18, 2017

Citations

No. 336021 (Mich. Ct. App. Jul. 18, 2017)