Opinion
No. 348972
02-20-2020
In re SMITH/WILLIAMS, Minors.
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 UNPUBLISHED Wayne Circuit Court Family Division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. 17-000048-NA Before: GLEICHER, P.J., and GADOLA and LETICA, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor children, MMLW I, MMLW II, ELS, and EDS, under MCL 712A.19b(3)(c)(i) (failure to rectify conditions that led to adjudication), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood that child will be harmed if returned to the parent). On appeal, respondent argues that the trial court clearly erred in finding that the statutory bases for termination were proven by clear and convincing evidence and that termination of respondent's parental rights was in the best interests of the children. We affirm.
The father, whose parental rights the trial court also terminated, is not a party to this appeal.
I. BACKGROUND
The Department of Health and Human Services (DHHS) filed an initial petition seeking removal of the children from respondent's care because of hazardous living conditions, confirmed incidents of domestic violence in the presence of three of the children, and improper supervision. Specifically, the children were found sleeping on the floor beside garbage, broken furniture, and empty alcohol bottles. The home, which had no locks on the door, smelt of marijuana and urine. There were no beds for the children, even though DHHS had previously provided beds for them. A knife also fell out of a closet and ELS picked it up by the blade. MMLW I had two deep scratches on his face that occurred when respondent and the father had fallen on him during a domestic violence incident. A service plan was implemented that required respondent to participate in domestic violence classes, parenting classes, individual therapy, a psychological evaluation, a substance abuse evaluation, to follow all recommendations from the evaluations, and to maintain suitable housing and income.
EDS was born during the pendency of this case. --------
DHHS filed a supplemental petition seeking termination of respondent's parental rights because respondent did not participate in the recommended drug screens and failed to maintain suitable housing. The trial court found that statutory grounds existed to terminate respondent's parental rights and that termination was in the children's best interests. This appeal followed.
II. DISCUSSION
Respondent argues that the trial court clearly erred when it terminated her parental rights to the children because petitioner did not make reasonable efforts to reunify her with the children, that DHHS had not proven any statutory bases for termination existed, nor had it proven that termination was in the children's best interests. We address each argument in turn and conclude there was no error.
A. REASONABLE EFFORTS
First, respondent argues that DHHS did not make reasonable efforts to assist respondent in complying with the case service plan. We disagree.
To preserve a challenge to the adequacy of services provided to a respondent, the respondent must object or otherwise indicate that the provided services were somehow inadequate at the time the services were offered. In re Frey, 297 Mich App 242, 247; 824 NW2d 569 (2012). Our Supreme Court has expressed skepticism "of this categorical rule," but has not overturned it. See In re Hicks/Brown, 500 Mich 79, 88-89; 893 NW2d 637 (2017). Respondent asserted that DHHS did not provide her with bus tickets well after the service plan was adopted. Respondent did not challenge the adequacy of the services when the service plan was adopted or shortly after; thus, this issue is unpreserved.
Accordingly, we review this issue for plain error affecting substantial rights. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). "To avoid forfeiture under the plain-error rule, the proponent must establish that a clear and obvious error occurred and that the error affected substantial rights." In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018). 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). Here, if a plain error has occurred, reversal is warranted only when the error seriously affected "the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks omitted).
DHHS "has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich at 85. Part of making a reasonable effort is the creation of a service plan, which outlines the steps that petitioner and respondent will take to achieve reunification. Id. at 85-86. The case service plan "must include, among other things, a '[s]chedule of services to be provided to the parent, child, and if the child is to be placed in foster care, the foster parent, to facilitate the child's return to his or her home or to facilitate the child's permanent placement.' " In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010), quoting MCL 712A.18f(3)(d) (alteration in original).
Respondent argues that DHHS did not offer reasonable services because DHHS did not adequately assist with housing. The record belies this contention. DHHS had previously referred respondent to the Family Reunification Program and respondent completed an application for Section 8 housing, which was approved. Respondent then declined the offered Section 8 housing and chose to live in low-income housing, where an eviction for non-payment of rent followed in mid-2018. The case worker provided a new application for the Family Reunification Program in January 2019. Thus, DHHS provided respondent with assistance in applying for Section 8 housing twice. Respondent also argues that DHHS did not provide her bus tickets to attend the drug screens. Respondent testified that, when she requested bus tickets, the case worker replied that respondent should have her husband buy bus tickets. However, at the July 2018 dispositional hearing, the case worker testified that respondent had not requested bus tickets lately and she would have provided the tickets if respondent had asked. The case worker also testified that respondent had not indicated to her that transportation was a barrier to her participation in any services. Additionally, at the final termination hearing, respondent testified that she had not asked for bus tickets since 2017, when the case worker allegedly rejected her. Thus, we cannot conclude on this record that the trial court plainly erred when it determined that DHHS made reasonable efforts towards reunification.
B. STATUTORY GROUNDS
Second, respondent argues that there was not clear and convincing evidence that the statutory grounds for termination existed. We disagree.
"We review for clear error a trial court's factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence." In re Mason, 486 Mich at 152. 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).
MCL 712A.19b(3) requires that petitioner prove, by clear and convincing evidence, at least one statutory ground for termination. "Only one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds." In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "If a statutory ground for termination is established and the trial court finds 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." Id. at 32-33 (quotation marks omitted).
MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a respondent's parental rights if it finds, by clear and convincing evidence, that:
(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...
(i) [t]he 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.
In this case, two of the conditions leading to adjudication—respondent's substance abuse and lack of suitable housing—continued to exist at the time of termination. The initial dispositional order was entered on April 12, 2017, and respondent was ordered to comply with the service plan, including participating in the recommended drug screenings from her substance abuse evaluation and maintaining suitable housing. The termination hearing began on January 25, 2019, which was more than 182 days after the April 12, 2017 dispositional order.
Respondent had last participated in a drug screen at 10:00 a.m. on March 19, 2018, which returned positive for alcohol and marijuana. From July 2017 through September 14, 2018, when the supplemental petition was filed, respondent participated in 13 drug screens and missed 48. This indicated that respondent had not benefited from her substance abuse therapy. Respondent's failure to rectify her substance abuse issue, which had a negative impact on her parenting and the household condition at the time the children were removed, supported termination under MCL 712A.19b(3)(c)(i). See 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[.]").
Additionally, respondent failed to maintain suitable housing. Respondent lived with family members and admitted that her mother's home was not suitable for the children because it was too small. When respondent testified at the termination hearing, she reported that she had toured an apartment the day before and believed she would move in within a month. However, there was no evidence that respondent had actually attempted to rent that apartment. As respondent had two years to find suitable housing and had failed to do so, viewing a single apartment on the day before the hearing was simply too little, too late.
Respondent also argues that the children were bonded to her, that she had benefited from therapy, and that the case worker made an unsubstantiated statement that respondent's therapist reported that respondent had not benefited from therapy. Even if respondent had benefited from therapy and potentially rectified some of the other conditions leading to adjudication, including domestic violence, this argument fails to address respondent's issues with substance abuse and maintaining suitable housing. Therefore, because respondent failed to benefit from the substance abuse therapy and failed to maintain suitable housing, the trial court did not clearly err by terminating her parental rights under MCL 712A.19b(3)(c)(i). We accordingly decline to review the remaining statutory grounds. In re Ellis, 294 Mich App at 32.
C. BEST INTERESTS
Lastly, respondent argues that the trial court clearly erred when it determined that termination of respondent's parental rights was in the children's best interests. 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). Again, 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 at 209-210.
"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. 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).
The trial court determined that termination of respondent's parental rights was in the best interests of the children because of the children's need for permanence, stability, and finality, as well as respondent's noncompliance with the case service plan, and respondent's failure to adequately benefit from the services. This was not clearly erroneous. At the time of the termination hearing, the children had been in foster care for over two years. MMLW I is autistic and nonverbal and did not attend school while living with respondent. ELS has sickle cell anemia. After ELS was removed from respondent's care, respondent refused to sign a medical authorization for ELS's foster parents to obtain appropriate medication for ELS. Attending school and having necessary medical treatment is in MMLW I and ELS's best interests, and respondent was unwilling to provide for these needs. Additionally, respondent did not fully comply with her case service plan because respondent failed to attend a majority of the drug screens and obtain suitable housing.
However, respondent argues that termination of her parental rights was not in the children's best interests because she had a strong bond with the children. Although there was evidence that the children were bonded with respondent, a child's bond to the parent is only one factor for the trial court to consider in the best-interests determination, In re Olive/Metts, 297 Mich App at 41-42, and the children's need for safety, permanency, and stability can outweigh it. Here, the trial court did not explicitly address the children's bond to respondent. However, the trial court did not clearly err by implicitly determining that the children's need for permanence, stability, and finality, as well as respondent's noncompliance with the case service plan and failure to benefit from the services, outweighed the children's bond to respondent.
Respondent next argues that she was benefiting from therapy. However, while respondent testified that she had benefited from her therapy, the case worker testified that respondent's therapist did not believe respondent had benefited. Moreover, MMLW II's foster care worker reported that respondent was only slightly engaged during parenting time visits with MMLW II, and that MMLW II would have to ask respondent to play with her. The foster care worker also reported that respondent would sometimes use her cellular telephone during the parenting time visits, and MMLW II would use respondent's telephone to call MMLW II's biological father. Respondent testified that she only used her telephone during the parenting time visits to download games and play music for MMLW II. However, given the other evidence presented, we cannot conclude that the trial court clearly erred. Accordingly, respondent's arguments that she benefited from therapy and only used her telephone during parenting time visits for MMLW II's benefit are unpersuasive.
Respondent also argues that she would have secured housing within one month, but the record belies this contention. Over the course of two years, respondent failed to maintain housing. Respondent was offered Section 8 housing, which she declined in favor of low-income housing. However, respondent was evicted from the low-income housing. Respondent claims that she could have moved into an apartment within one month of the termination hearing. But, as discussed above, respondent had only toured the apartment. There is no evidence that respondent's housing application would have been accepted. Thus, we can find no clear error in the trial court's best-interests determination.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
/s/ Anica Letica