Opinion
No. 351233
04-23-2020
In re A. SMITH, JR., Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Huron Circuit Court Family Division
LC No. 17-004605-NA Before: GADOLA, P.J., and STEPHENS and SHAPIRO, JJ. PER CURIAM.
Respondent appeals as of right an order terminating her parental rights to the minor child, AS, pursuant to MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm if child is returned to parent's home). Finding no error requiring reversal, we affirm.
I. BACKGROUND
In September 2017, petitioner filed a petition for temporary custody and removal of AS from respondent's care because respondent had been noncompliant with an ongoing Children's Protective Services investigation, suffered from untreated bipolar disorder, and had a recent history of homelessness. The petition also alleged that AS's father was incarcerated and was therefore not available to care for AS. After the petition was authorized, the trial court assumed jurisdiction on the basis of respondent's plea of admission concerning her need for mental health treatment. Respondent and petitioner entered a treatment plan calling for parenting education services and treatment through Huron Behavior Health (HBH) to address respondent's emotional instability. AS was initially allowed to stay in respondent's care subject to several conditions, but he was placed in foster care in February 2018 after respondent violated the court's conditions. Throughout the case, respondent's participation in services was sporadic, and her caseworker opined that respondent was not benefiting from her services. The trial court eventually directed petitioner to file a supplemental petition and, after a hearing, respondent's parental rights were terminated.
AS's father was also a respondent in this matter and his parental rights were terminated in an earlier order. He has not appealed that order and his rights are not at issue in this appeal.
II. PERMANENCY PLANNING HEARINGS
Respondent first argues that the trial court erred by directing petitioner to seek termination of her parental rights without first determining whether AS would be at a substantial risk of harm if returned to respondent's care. We disagree.
Respondent failed to preserve this issue for review by raising it before the trial court. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014) ("In general, issues that are raised, addressed, and decided by the trial court are preserved for appeal."). We review unpreserved issues for plain error. In re Beers, 325 Mich App 653, 677; 926 NW2d 832 (2018). "To avoid forfeiture under the plain-error rule, the proponent must establish that a clear or obvious error occurred and that the error affected substantial rights." Id. "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. (quotation marks and citation omitted; alteration in original). Plain error does not require reversal unless the fairness, integrity, or public reputation of judicial proceedings was seriously affected by the error. In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019).
The trial court must hold a permanency planning hearing within 12 months of a child's removal from the family home to "review the child's status and the progress being made toward the child's return home or to show why the child should not be placed in the permanent custody of the court." MCL 712A.19a(1) and (3). See also In re Ferranti, 504 Mich at 16 (discussing timing and purpose of permanency planning hearings). At the time of the permanency planning hearings, MCL 712A.19a(7) provided:
MCL 712A.19a has been amended since the permanency planning hearings held in this case. See 2020 PA 9, effective January 27, 2020. The amendment involved only minor grammatical changes and did not alter the substance of the subsections cited in this opinion. All citations to the statutory text refer to the version of the statute in effect during respondent's permanency planning hearings, i.e., MCL 712A.19a, as amended by 2018 PA 58.
If parental rights to the child have not been terminated and the court determines at a permanency planning hearing that the return of the child to his or her parent would not cause a substantial risk of harm to the child's life, physical health, or mental well-being, the court shall order the child returned to his or her parent. In determining whether the return of the child would cause a substantial risk of harm to the child, the court shall view the failure of the parent to substantially comply with the terms and conditions of the case service plan prepared under [MCL 712A.18f] as evidence that return of the child to his or her parent would cause a substantial risk of harm to the child's life, physical health, or mental well-being. In addition to considering conduct of the parent as evidence of substantial risk of harm, the court shall consider any condition or circumstance of the child that may
be evidence that a return to the parent would cause a substantial risk of harm to the child's life, physical health, or mental well-being.MCR 3.976(E)(2) similarly provides:
Determining Whether to Return Child Home. At the conclusion of a permanency planning hearing, the court must order the child returned home unless it determines that the return would cause a substantial risk of harm to the life, the physical health, or the mental well-being of the child. Failure to substantially comply with the case service plan is evidence that the return of the child to the parent may cause a substantial risk of harm to the child's life, physical health, or mental well-being. In addition, the court shall consider any condition or circumstance of the child that may be evidence that a return to the parent would cause a substantial risk of harm to the child's life, physical health, or mental well-being.If the court determines that the child should not be returned to his or her parent, it may order the petitioner to initiate proceedings to terminate parental rights. MCL 712A.19a(8); MCR 3.976(3).
MCR 3.976 has also been amended since the permanency planning hearings in this case. See MCR 3.976, as amended June 19, 2019, 504 Mich lxxviii (2019) (effective January 1, 2020). The amendment did not alter the provisions at issue in this appeal.
Respondent argues that the trial court did not comply with these provisions because it directed petitioner to file the supplemental petition without first considering whether returning AS to respondent's care would expose him to a substantial risk of harm. Respondent further contends that if the trial court had considered the issue, it would have been required to return AS to her care because there was no evidence that he would have been at risk of harm. We disagree.
The trial court held two permanency planning hearings in this case. The court's orders following both hearings included a finding that returning AS to respondent would cause a substantial risk of harm. Respondent's argument implies that the trial court's finding or findings must be stated on the record. Neither MCL 712A.19a(7) nor MCR 3.976(E)(2) contain any such a requirement. This is unlike other statutory provisions or court rules which require statements on the record such as MCR 3.976(E)(3) (requiring express statement on the record of reason for not requiring termination petition when foster care is continued). We agree that the finding must be on the record in some form, but it is axiomatic that a court speaks through its written orders and judgments, In re KMN, 309 Mich App 274, 287; 870 NW2d 75 (2015), and the written orders included the required findings. Thus, respondent cannot establish a plain or obvious error on this basis. In re Beers, 325 Mich App at 677.
Additionally, the record contains support for the court's written findings. At the first permanency planning hearing, respondent's caseworker described respondent's inconsistent record of complying with the case service plan. Respondent had an unreliable attendance record for her mental health treatment and she continued to have emotional outbursts when dealing with her caseworker and other service providers. For instance, less than a month before the February 6, 2019 hearing, respondent was so overwhelmed by hostile feelings toward her caseworker that she voluntarily cancelled a visit with AS to avoid seeing the caseworker. Respondent then made threats against the caseworker and had to remain at HBH until petitioner's office closed to ensure that she did not act out in anger. Before concluding the February 6, 2019 hearing, the trial court noted its concern that respondent was still experiencing uncontrolled mood swings. The court noted that respondent's then recent use of cocaine exacerbated those mood swings, and potentially placed AS in harm's way. Under both MCL 712A.19a(7) and MCR 3.976(E)(2), respondent's failure to substantially comply with her case service plan was evidence that returning AS to respondent could cause a substantial risk of harm to his life, physical health, or mental wellbeing.
The caseworker also testified that AS was displaying negative attention seeking behavior after his visits with respondent and on the occasions that respondent failed to attend scheduled visits. Furthermore, even after having been advised not to discuss the case with AS, respondent told AS that the court was going to take him away from her and that he should contact her when he was an adult. Those comments caused AS considerable emotional distress. The trial court's written finding that returning AS to respondent's care would cause a substantial risk of harm was well supported by this record.
III. REASONABLE ACCOMMODATIONS
Respondent next argues that petitioner did not satisfy its obligation to reasonably accommodate her bipolar disorder as required under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. We disagree.
"In general, issues that are raised, addressed, and decided by the trial court are preserved for appeal." In re TK, 306 Mich App at 703. In addition, a respondent challenging the adequacy of a case service plan under the ADA must raise the issue before the trial court in a timely manner. See In re Terry, 240 Mich App 14, 26-27; 610 NW2d 563 (2000) (holding that ADA claim presented in closing argument at termination hearing was raised too late). Because respondent did not raise this issue below, it is unpreserved. Our review of this issue is therefore governed by the plain-error rule discussed in Part II of this opinion. In re Ferranti, 504 Mich at 29; In re Beers, 325 Mich App at 677.
Subject to exceptions that are inapplicable to this case, petitioner had an affirmative duty to make reasonable efforts toward reunification before requesting termination of respondent's parental rights. In re Hicks, 500 Mich 79, 85; 893 NW2d 637 (2017). Among other requirements, petitioner had to "create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification." Id. at 85-86. Moreover, because petitioner is a public entity subject to the requirements of the ADA, it must generally make "reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability . . . ." Id. at 86, quoting 28 CFR 35.130(b)(7) (2016) (quotation marks omitted). Thus, "[a]bsent reasonable modifications to the services or programs offered to a disabled parent," petitioner cannot satisfy its statutory duty to facilitate reasonable reunification efforts in child protective proceedings. In re Hicks, 500 Mich at 86.
Respondent argues that the trial court erred by terminating her parental rights because her case service plan was not designed to accommodate her bipolar disorder. We disagree. Respondent was referred to counseling and psychiatric services from the beginning of the case. HBH arranged in-home services, including counseling and a parent support partner. Despite the ease of access arising from the in-home nature of these services, respondent became noncompliant in December 2017. Even when respondent stopped participating in counseling and essentially disappeared with AS for approximately a month, petitioner did not request AS's immediate removal from respondent's care. Instead, petitioner asked only that respondent return so that AS's wellbeing could be confirmed and that respondent resume complying with her mental health treatment. Shortly thereafter, respondent was transferred to outpatient counseling at HBH after she refused to continue working with her in-home counselor. Respondent's counseling was primarily focused on addressing her anger, increasing her patience, and learning to better regulate her emotions. As with most other services, respondent's participation at HBH was inconsistent; while she attended many counseling sessions, she also missed several and had to reschedule others. Respondent was not immediately assessed for psychotropic medication, but not for want of effort by petitioner. Respondent was referred for a psychiatric evaluation early in the case, but she failed to attend. Even after respondent's visitation and other services had been suspended, the HBH services were still made available to her.
Respondent's parenting skills services were also reasonably tailored to her needs. For instance, respondent completed a Families First program that involved safety planning and anger management before the first review hearing in November 2017. Many of respondent's parenting-time visits took place with an agency that not only supervised the visit, but also provided parenting education and guidance during the visits. And while respondent now takes issue with petitioner's decision to refer her to purportedly generic programs like Love and Logic, respondent made no such complaints when the referrals were made. To the contrary, respondent told her caseworker that she enjoyed the few Love and Logic classes she attended and inquired when the program would be available again. "A party may not claim as error on appeal an issue that the party deemed proper in the trial court because doing so would permit the party to harbor error as an appellate parachute." Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863 NW2d 352 (2014) (quotation marks and citation omitted).
Respondent also points to the required drug testing as evidence of an inadequate case service plan because the drug testing was ordered as a standard protocol, even though her caseworker had no concerns that respondent was abusing illegal substances. While respondent is correct that her caseworker did not believe that drug use was an issue for respondent, other evidence suggests that the drug testing was an appropriate part of respondent's case service plan. In particular, respondent had been diagnosed with cannabis abuse and actually tested positive for cocaine in December 2018.
In sum, the record demonstrates that respondent was offered a variety of services designed to address her mental health and the emotional instability that was associated with her bipolar disorder. Accordingly, petitioner satisfied its duty to make reasonable efforts toward reunification and provide reasonable accommodations for respondent's bipolar disorder before seeking termination of respondent's parental rights. In re Hicks, 500 Mich at 86.
IV. STATUTORY GROUNDS
Next, respondent argues that the trial court erred by finding that petitioner established statutory grounds for termination of her parental rights. We disagree.
Before terminating a respondent's parental rights, the trial court must find that the petitioner established at least one statutory ground for termination by clear and convincing evidence. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). We review the trial court's findings regarding statutory grounds supporting termination of parental rights for clear error. In re Kaczkowski, 325 Mich App 69, 74; 924 NW2d 1 (2018). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." Id. (quotation marks and citation omitted).
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), which authorization termination under the following circumstances:
(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.
* * *
(g) The parent, although, in the court's discretion, financially able to do so, 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.
* * *
(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.
Respondent argues that the trial court erred by terminating her parental rights under Subdivision (c)(i) because it considered matters beyond the condition that led to adjudication, such as respondent's alleged substance abuse and AS's post-traumatic stress disorder. We disagree. Although the trial court's findings regarding MCL 712A.19b(3)(c)(i) were limited and not well organized, the court did not reference substance abuse or trauma experienced by AS in discussing this statutory ground. What can be fairly gleaned from the trial court's explanation is that it found that "the situation remain[ed] unchanged" after nearly two years and that respondent continued to live in a general state of chaos. Under MCR 3.977(I)(1), the trial court was only required to make "[b]rief, definite, and pertinent findings and conclusions on contested matters." Because the trial court was not obligated to make detailed findings, its brief explanation was sufficient.
The trial court did not clearly err by finding that MCL 712A.19b(3)(c)(i) had been established by clear and convincing evidence. The initial dispositional order was issued on November 8, 2017, and well over 182 days had elapsed by the time of the termination hearing in August 2019. The condition that led to the adjudication was respondent's untreated mental illness, which left her unable to consistently provide stability or appropriate care for AS.
As noted earlier, the trial court assumed jurisdiction on the basis of respondent's plea of admission, and respondent specifically indicated that she was willing to enter a plea concerning her need for mental health treatment. Although there was some discussion regarding a recent period of homelessness, respondent had acquired a suitable apartment before she entered her plea and that apartment remained her permanent residence throughout these proceedings. As such, we do not view respondent's housing as a condition that led to the adjudication.
Throughout the case, there were numerous examples of explosive behavior that showed respondent remained unable to control her emotions. Respondent got into an altercation with her father around the time the initial petition was filed. Although the fight did not involve physical contact, both respondent and her father threw household objects at one another, and the police were called to intervene. A few months later, respondent became unreasonably angry with her caseworker upon learning that the caseworker spoke with respondent's father to verify respondent's report about a short-term stay with him. When it appeared that respondent's story was inaccurate, respondent refused to discuss the matter further. Respondent threatened caseworkers on at least three occasions; one of these incidents became so serious that a police report was filed and respondent had to remain at HBH until petitioner's office closed. In January 2019, respondent's appointed attorney withdrew from his representation after respondent made a scene in the public reception area of his office. Respondent similarly lost her temper with her mother shortly before the termination hearing and with an aunt while AS was placed in the aunt's care. The encounter with respondent's mother again required police intervention, and respondent was ultimately arrested for disorderly conduct after being forcibly restrained by several police officers. The record reflects emotional outbursts during several court proceedings as well. Although respondent's instability primarily involved unreasonable aggression or rage, she also presented as tired or unengaged at certain visits with AS, and parenting-time supervisors reported that she was often stern with AS and allowed situational frustration or annoyance to affect her parenting.
In light of the foregoing, it was clear that respondent's emotional volatility remained a problem despite her sporadic participation in counseling and parenting education classes. Admittedly, respondent often showed periods of improvement, but she invariably reverted to explosive and unreasonable behavior. Because respondent failed to demonstrate any consistent progress after nearly two years of services, it was reasonable to conclude that she was unlikely to rectify the condition that led to adjudication within a reasonable time considering AS's young age. Thus, the trial court did not clearly err by finding that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(c)(i).
Turning to the remaining statutory grounds for termination, respondent contends that the trial court erred by failing to adequately explain the basis for its ruling regarding MCL 712A.19b(3)(g) and (j). Although we acknowledge that the trial court's explanation was not a model of clarity, the court explicitly cited both statutory grounds. With respect to subdivision (g), the court indicated that respondent failed to demonstrate that she could provide proper care and custody after the court terminated the parental rights of AS's father. The trial court then noted that subdivision (j) was the most difficult to explain to respondent because respondent failed to recognize that emotional harm could be sufficient. While not particularly detailed, the trial court's statements were brief, definite, and pertinent and, therefore, satisfied the requirements of MCR 3.977(I)(1).
Respondent also argues that termination was not warranted under MCL 712A.19b(3)(g) or (j) because both statutory grounds involve a component of future neglect or abuse. Respondent contends that the trial court clearly erred by terminating her parental rights under these statutory grounds because there was no evidence that she had ever endangered her child as a result of her mental illness or that she would be likely to harm him in the future. We disagree.
When respondent entered the plea that formed the basis for the trial court's jurisdiction, she admitted that she once overdosed on prescription medication, which left her unable to properly care for AS and exposed him to a risk of harm. Respondent also left AS in the care of her father within two weeks of the trial court explicitly ordering that her father was not a suitable caregiver. Thus, contrary to respondent's argument, there was evidence of past improper care and exposure to harm.
Concerning the future, it was reasonable for the trial court to infer that respondent could not be expected to provide proper care and custody within a reasonable time. "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody." In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014). Respondent's compliance with her case service plan was inconsistent, and her participation declined drastically in the months before the supplemental petition seeking termination was filed. In addition, respondent was arrested four times during these proceedings, although AS was not in her care on those occasions. Respondent's emotional volatility led to at least two other incidents that required police involvement, both of which could have easily resulted in additional arrests. At the termination hearing, respondent discounted the significance of her arrests, reasoning that issues like unpaid parking tickets were unlikely to hurt AS. Respondent's position demonstrated that she did not appreciate that her repeated incarcerations left her unable to provide proper care and custody for AS. Furthermore, respondent did not attend approximately 20% of her scheduled visits throughout the case, either because she forgot about the visits, failed to manage her time appropriately, or failed to schedule transportation. When she did attend visits, she was regularly late or unprepared. Given respondent's failure to demonstrate that she could reliably care for AS, the trial court did not clearly err by finding that MCL 712A.19b(3)(g) was established by clear and convincing evidence.
Although an incarcerated parent is not required to personally care for the child if suitable arrangements are made, see In re Mason, 486 Mich 142, 160-161; 782 NW2d 747 (2010) (concerning termination under MCL 712A.19b(3)(h), which contains similar language regarding care and custody), it does not appear that respondent prioritized the suitability of alternative care. Respondent was specifically instructed not to leave AS with her father, who was deemed an inappropriate caregiver. Respondent violated the court's order within weeks so she could help a friend who was "stranded" somewhere outside of Huron County. Apart from evincing a complete indifference for the seriousness of the proceedings, respondent's decision to disregard the court's order was evidence that she had little concern for ensuring proper care and custody.
The record also supports the trial court's conclusion that MCL 712A.19b(3)(j) had been established. Again, respondent failed to comply with her case service plan with any consistency, and her noncompliance was evidence that AS would be harmed in her care. Id. at 711. The risk of harm that is relevant to this statutory ground is not limited to physical harm—a risk of emotional harm can support termination of parental rights under MCL 712A.19b(3)(j). In re Hudson, 294 Mich App at 268. AS was diagnosed with post-traumatic stress disorder arising from instability and a chaotic home environment. Respondent insists that attributing AS's condition to her actions was speculative because he experienced significant instability by being placed in five foster care homes before the trauma assessment. While respondent's argument is not unreasonable, it ignores the fact that AS's symptomatic behaviors increased around the times of respondent's visits and dissipated after respondent's visitation was suspended. AS's counselor testified that she would expect AS to regress to his old behavior if he was not in a stable environment, which would be detrimental to his wellbeing. In light of the regular chaos involved in respondent's life, the trial court did not clearly err by finding a reasonable likelihood that AS would suffer harm on an emotional level if returned to respondent's care. Thus, the trial court did not clearly err by terminating respondent's parental rights under MCL 712A.19b(3)(j).
V. BEST INTERESTS
Lastly, respondent argues that the trial court erred by finding that termination of her parental rights was in AS's best interests. We disagree.
Before a trial court can terminate parental rights, it must find by a preponderance of the evidence that termination is in the child's best interests. In re Keillor, 325 Mich App 80, 93; 923 NW2d 617 (2018). We review the trial court's finding regarding a child's best interests for clear error. Id. "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Kaczkowski, 325 Mich App at 74 (quotation marks and 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 Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). The respondent's visitation history and compliance with his or her case service plan are also relevant considerations. In re White, 303 Mich App at 714.
As noted elsewhere in this opinion, respondent had a poor history of complying with her case service plan or consistently attending visitation on time and being suitably prepared. AS was undoubtedly bonded to respondent, but that same bond left AS with regular feelings of disappointment when respondent did not follow through with visitation. AS was diagnosed with post-traumatic stress disorder. AS's counselor attributed his condition to a chaotic home environment and explained that stability was imperative to AS's wellbeing. Respondent's caseworker expressed doubt as to whether respondent would ensure that AS received necessary treatment when respondent failed to adequately attend to her own mental health needs. Since respondent's visitation was suspended, AS's behavior had improved, and he stopped asking about respondent. The caseworker reported that AS seemed happy in his foster care placement and was enrolled in school, counseling, and extracurricular activities. Given the negative impact of the chaos AS was exposed to while in respondent's care and the improvements he showed once he was placed in a stable foster care home, the trial court did not clearly err by determining that termination of respondent's parental rights was in AS's best interests.
Affirmed.
/s/ Michael F. Gadola
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro