Opinion
356327
09-16-2021
In re J. D. STENSON II, Minor.
UNPUBLISHED
Calhoun Circuit Court Family Division LC No. 2019-002900-NA
Before: Cameron, P.J., and Jansen and Gleicher, JJ.PER CURIAM.
Respondent-mother appeals by right the trial court order terminating her parental rights to the minor child, JDS, under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist and are not likely to be rectified within a reasonable time) and (j) (reasonable likelihood that child will be harmed if returned to parent). The trial court also terminated the parental rights of the child's father, who is not a party to this appeal. We affirm.
Mother and respondent-father had released their parental rights to three of their mutual children, and mother had previously released rights to a fourth child who had a different father. Mother and respondent-father were also the parents of AB, over whom the Hillsdale County trial court had jurisdiction. Mother and respondent-father were married at the time of JDS's birth; therefore, respondent-father was JDS's legal father. Mother identified JDS's biological father, but he never completed the process to establish paternity.
In October 2019, two days after JDS was born, the Department of Health and Human Services (DHHS) filed a complaint, requesting that the trial court remove JDS from mother and father's care and terminate their parental rights because of the termination of their parental rights to their three other children based on domestic violence, the pending Hillsdale County case for AB, failure to follow a safety plan, and mental health concerns. The DHHS further alleged that mother had tested positive for methamphetamine three weeks before JDS's birth, and her home was unsuitable. The trial court found that JDS was at a substantial risk of harm, and that his immediate removal was necessary to protect his health and safety.
After a year of services and review hearings, the trial court found that returning JDS to respondents would present a substantial risk of harm to him and that the DHHS should initiate proceedings to terminate respondents' parental rights. The DHHS filed a supplemental petition requesting that the trial court terminate respondents' parental rights, and the termination hearing began in January 2021. Respondent-father stipulated that it was in JDS's best interests to terminate his parental rights, and that he had not made a custodial claim for at least 91 days and did not intend to make a custodial claim.
The trial court found that reasonable efforts had been made, including substance abuse treatment, counseling, parenting classes, drug screens, parenting time, and transportation and housing assistance. The trial court explained that, under MCL 712a.19b(3)(c)(i), 317 days had elapsed, and it found "by clear and convincing evidence that the conditions that lead to adjudication exist and there's no reasonable likelihood that [t]hey will be rectified in a reasonable amount of time." Mother had had services since 2002, and the major issues in this case were substance abuse and housing, which were unresolved. Mother addressed some of the issues inside her home, but she could not keep a child inside all of the time, and issues remained outside of the home, even if mother stated that she did not have control over it. Mother had missed 69 drug screens, and tested positive in 15 screens, including in December 2020. Mental health professionals determined whether to treat substance abuse or mental health issues first, and they determined initially to address mother's mental health concerns. The question was whether mother could rectify the issues in a reasonable amount of time, and the court found that mother could not on the basis of the long period in which she had been offered services without benefit. Giving mother more time, particularly considering JDS's young age and that he had been in care for his entire life, would not be reasonable.
Regarding MCL 712a.19b(3)(j), the trial court found that there was "absolutely" a reasonable likelihood that JDS would be harmed in mother's care. Mother's situation was not stable, and housing was not appropriate on the basis of the domestic violence in the home. The trial court referred to mother's "mental instability," including aggression and violence in December 2020, when she pleaded guilty to domestic violence. The trial court stated that, on the basis of its observations of mother during the hearing, she had "physical manifestations of problems with drug use and mental health." Mother engaged in "odd behavior," including "licking constantly," and she made statements that she did not understand that there was a problem, and that she thought she could parent JDS "right now." The trial court had empathy for mother's history, but found that she had not benefited from services, her medication did not always help her, and she did not like the services she was offered.
The trial court found that there was clear and convincing evidence of statutory grounds and that termination was in JDS's best interests. JDS had been in the same placement for his entire life, and mother admitted that she was unable to parent him without relying on JDS's biological father. Mother only attended 39 of 70 visits. Mother appeared to be overwhelmed and was unable to handle JDS's needs. JDS and mother were not bonded, while JDS was bonded with his foster parents. The issues were a result of mother's mental health, lack of parenting skills, and her lack of participation visits, and the DHHS had complied with mother's needs. The trial court terminated respondents' parental rights to JDS. Mother now appeals.
Mother argues first that there was not clear and convincing evidence that statutory grounds for termination existed. We disagree.
This Court reviews for clear error a trial court's finding that a statutory ground for termination existed. In re Terry, 240 Mich.App. 14, 22; 610 N.W.2d 563 (2000). Clear error exists when this Court is left with a definite and firm conviction that the trial court made a mistake. Id. A trial court's finding of a statutory ground for termination must be supported by clear and convincing evidence. Id. at 21-22.
The trial court did not clearly err by finding that 182 or more days had passed since the initial dispositional order, that the conditions that led to the adjudication continued to exist, and that there was no reasonable likelihood that mother could rectify the conditions in a reasonable time considering JDS's age. See MCL 712A.19b(3)(c)(i); In re Terry, 240 Mich.App. at 22-23. First, the trial court entered mother's initial dispositional order in March 2020, which was approximately 10 months before the termination hearing began and well beyond the 182 days required under MCL 712A.19b(3)(c). Although mother argues that the trial court failed to consider the impact of the pandemic on mother's compliance with services, mother began testing positive for methamphetamine in 2019, and the trial court specifically referred to mother's missed and positive drug screens throughout 2020, including as late as December 2020. The caseworker, Jordanne Wait, specifically testified that mother had a prolonged period of negative drug screens until June 2020, indicating that the pandemic was not preventing mother from participating in screens. Further, because of the pandemic, many of mother's services were virtual, seemingly making it easier for her to attend counseling and visits as mother never reported that she did not have the technology required. Despite the virtual nature of the services, mother only attended 39 out of 70 visits and left other visits early.
Next, the conditions that led to the adjudication were primarily substance abuse and housing, and these conditions continued to exist at the time of the termination hearing. See MCL 712A.19b(3)(c)(i). Although mother partially complied with drug screens, mother missed 69 of the offered 102 drug screens and had positive tests in 15 of the 31 tests that she completed. Further, mother made some improvement to her housing, but Wait also testified that mother did not consistently make rent payments and that there were dangerous objects outside of the home. Additionally, as the trial court stated, mother was arrested for, and charged with, domestic violence against JDS's biological father, whom she lived with, only one month before the termination hearing, supporting the trial court's finding that mother's housing was not suitable. Mother, therefore, did not demonstrate a benefit from services or progress related to her substance abuse. See In re Williams, 286 Mich.App. 253, 272; 779 N.W.2d 286 (2009) (explaining that although the mother "embarked on a commendable effort to treat her addiction," she had "not accomplished any meaningful change in the conditions existing by the time of the adjudication" when the mother had longstanding issues with substance abuse and housing).
Mother specifically argues that the DHHS "botched" her services by failing to coordinate with Hillsdale County, but Wait repeatedly testified that mother's counselor, with whom mother had been working for at least one year, recommended that they not overwhelm mother with numerous services, including substance abuse counseling. Mother's counseling addressed her mental health, and her counselor attempted to help her develop coping skills. There was no indication that mother had improved her substance abuse issues, despite the services that she had received since 2002. Although mother additionally argues that the DHHS did not accommodate her disabilities, there was no indication that mother was unable to participate in the offered and needed services, nor that mother requested any accommodations. Not only did mother fail to timely raise the issue before the termination hearing, mother specifically testified that she did not need special accommodations in order to participate in benefit from services. See In re Terry, 240 Mich.App. at 27. Further, Michelle Gallippo, the foster care worker, testified that mother could seemingly comprehend what Gallippo told her, and Wait made a number of offers, including transporting mother herself, in order to address mother's needs. There was no indication that mother's needs were not thoroughly addressed. The trial court did not err by finding that the DHHS made reasonable efforts, which also fulfilled the DHHS's responsibility under the Americans with Disabilities Act. See id. at 26.
Although mother refers to the efforts that the DHHS made in her arguments, her statement of the questions presented only raise the issues of statutory grounds and JDS's best interests. Therefore, the issue is waived. See Caldwell v Chapman, 240 Mich.App. 124, 132; 610 N.W.2d 264 (2000). However, as discussed throughout, the trial court did not err by finding that reasonable efforts had been made.
Finally, there was no reasonable likelihood that mother could rectify the conditions in a reasonable time considering JDS's age. See MCL 712A.19b(3)(c)(i); In re Williams, 286 Mich.App. at 272-273. Mother only attended 39 out of 70 visits, and during the visits she did attend, Wait did not observe that mother and JDS were bonded with each other. Wait had concerns about mother's ability to safely hold JDS and her ability to properly soothe him, indicating that mother had not benefited from years of parenting classes and services and would not in a reasonable time. Mother specifically stated that she did not think that there was a problem and that she was ready to parent JDS immediately, making it unlikely that mother would engage in efforts to improve her skills or address concerns. Wait referred mother to a safety course, which mother found unhelpful, and from which Wait did not see any resulting benefit. Mother did not work and had not qualified for social security benefits, which limited her ability to acquire suitable housing for herself and JDS.
There was no indication that mother, who had already engaged in a number of services since 2002, would be able to benefit from more services and make progress in a reasonable amount of time to provide stability, permanence, and finality for JDS, who had been in care since he was born. See Matter of Dahms, 187 Mich.App. 644, 647-648; 468 N.W.2d 315 (1991) (explaining that the Legislature intended that parental rights be terminated if the conditions could not be rectified in a reasonable time and holding that "the two to three years of therapy necessary for [the mother] to reach an acceptable level of parenting skill" was not reasonable considering the ages of the children and their needs). Therefore, the trial court did not err by finding that evidence supported termination under MCL 712.19b(3)(c)(i). See In re Terry, 240 Mich.App. at 22-23.
The trial court also did not clearly err by finding that there was a reasonable likelihood that JDS would be harmed if he was in mother's care. See In re Moss, 301 Mich.App. 76, 82; 836 N.W.2d 182 (2013). Although mother argues that there was no "proof" that she was unable to parent JDS, as mother testified, she had received services since 2002. Despite these services, mother continued to struggle with substance abuse. Mother tested positive for methamphetamine in 2019, and as recently as a month before the termination hearing, which occurred in January 2021. She additionally missed 69 of 102 scheduled drug screens throughout the course of this case and JDS's life. Further, Wait testified that she was concerned about the way that mother held JDS and provided him with unsafe items to play with. Wait referred mother to a safety course to address these different concerns, but mother did not find it helpful and it did not mitigate the concerns that Wait had. Similarly, mother did not think that she learned anything from the parenting class.
Moreover, a month before the termination hearing began, mother was arrested for, and charged with, domestic violence against JDS's biological father, with whom she lived. Although mother reportedly made improvements to their home, there continued to exist safety concerns about the outside of the home. Further, the trial court observed a number of mother's behaviors and statements during her testimony that supported the trial court's finding that mother was unable to safely parent JDS, and this Court gives deference to the trial court's ability to observe the witnesses in making its determinations. See In re Miller, 433 Mich. 331, 337; 445 N.W.2d 161 (1989). Therefore, the trial court did not err by finding clear and convincing evidence that there was a reasonable likelihood that JDS would be harmed if he returned to mother's care. See In re Moss, 301 Mich.App. at 82.
Mother argues next that the trial court erred by finding that it was in JDS's best interests to terminate mother's parental rights. We disagree.
This Court reviews for clear error a trial court's finding that termination was in a child's best interests. In re White, 303 Mich.App. 701, 713; 846 N.W.2d 61 (2014). Clear error exists when this Court is left with a definite and firm conviction that the trial court made a mistake. In re Terry, 240 Mich.App. at 22. A trial court must find by a preponderance of the evidence that the termination was in the child's best interests. In re Moss, 301 Mich.App. at 90.
Under MCL 712A.19b(5), the trial court must find, in addition to statutory grounds for termination, that the termination is in the child's best interests. 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 Minors, 297 Mich.App. 35, 41-42; 823 N.W.2d 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. The focus is on the child rather than the parent. In re Moss, 301 Mich.App. at 87.
The trial court did not err by finding that terminating mother's parental rights was in JDS's best interests. See In re White, 303 Mich.App. at 713-716. Wait testified that mother and JDS did not appear to share a bond, that mother could not soothe JDS, and that JDS was soothed immediately when he returned to his foster parents. The trial court acknowledged that JDS had been in care since he was born, and the record showed that JDS's foster parents provided him with stability and provided for all of his needs, and he was bonded with them. See id.; In re VanDalen, 293 Mich.App. 120, 141-142; 809 N.W.2d 412 (2011).
The trial court also properly considered mother's recent domestic violence and her lack of compliance with her drug screens and parenting-time visits. The record showed that mother's involvement in services since 2002 had not addressed the concerns that Wait had about mother's parenting abilities, and mother was minimally engaged in her parenting class throughout this case. Mother also missed a significant number of her parenting-time visits with JDS. Therefore, the trial court did not clearly err by finding that it was in JDS's best interests to terminate father's parental rights. See In re White, 303 Mich.App. at 713-716.
Affirmed.