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In re Teubert

STATE OF MICHIGAN COURT OF APPEALS
Nov 27, 2018
No. 342405 (Mich. Ct. App. Nov. 27, 2018)

Opinion

No. 342405

11-27-2018

In re TEUBERT, Minors.


UNPUBLISHED Wayne Circuit Court Family Division
LC No. 94-316712-NA Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.

Respondent appeals as of right the order terminating her parental rights to the minor children, MT and RT, under 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 that child will be harmed if returned to parent). We affirm.

MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the prior version of the statute, a court could terminate parental rights if "[t]he parent, without regard to intent, fails to provide proper care or custody for the child," with no reasonable expectation that the parent would provide proper care and custody in a reasonable amount of time, given the child's age. See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quoting the prior version of MCL 712A.19b(3)(g)). Under the new version of the statute, termination is warranted where "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child. . . ." MCL 712A.19b(3)(g), as amended by 2018 PA 58. --------

Respondent argues that there were not statutory grounds to support the termination of her parental rights. We disagree.

"This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established . . . ." In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). Statutory grounds for termination must be established by clear and convincing evidence. Id. A factual 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.

I. MCL 712A.19b(3)(c)(i)

The trial court did not err by terminating respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i) because clear and convincing evidence existed to show that respondent failed to complete her parent-agency agreement, and more than 182 days had passed since the initial dispositional order was entered on July 15, 2014. MCL 712A.19b(3)(c)(i) provides:

(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .


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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 . . .

(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified in a reasonable time considering the child's age. [MCL 712A.19b(3)(c)(i); In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014).]

MT and RT were originally removed from respondent's custody because the house that they were living in had no running water and was covered in piles of miscellaneous items and refuse. Respondent's unresolved mental health issues were listed as an additional reason for removing MT and RT from her custody. At the time of the termination hearing, the record indicates that respondent had moved into an apartment, but Child Protective Services ("CPS") workers found that the apartment was unfit for MT and RT to live in because it was becoming cluttered and dirty in the same manner as respondent's previous house. This information indicates that respondent failed to benefit from the services that she participated in pursuant to the parent agency agreement. Additionally, respondent was ordered to complete psychiatric treatment and participate in individual counseling on a consistent basis, but failed to undergo a psychiatric evaluation or consistently appear for counseling sessions. A respondent's participation in a parent-agency agreement is considered insufficient where the respondent "fail[s] to demonstrate sufficient compliance with or benefit from those services specifically targeted to address the primary basis for the adjudication in th[e] matter . . . ." In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012).

Clear and convincing evidence supported the trial court's finding that the conditions leading to adjudication were still in existence at the time of termination. The initial dispositional order was entered on July 15, 2014, but respondent failed to successfully attend to her mental health issues or acquire suitable housing prior to the date of the termination hearing, which took place on January 8, 2018, and concluded on January 11, 2018. Far more than 182 days passed between the time that the initial dispositional order was entered and the date of the termination hearing. Accordingly, clear and convincing evidence existed to justify the termination of respondent's parental rights under MCL 712A.19b(3)(c)(i).

II. MCL 712A.19b(3)(g)

The trial court did not err by terminating respondent's parental rights pursuant to MCL 712A.19b(3)(g).

MCL 712A.19b(3)(g) provides:

(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .


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(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. [MCL 712A.19b(3)(g); In re White, 303 Mich App at 710.]
The record supports termination of respondent's parental rights under MCL 712A.19b(3)(g). During the four years that MT and RT were in petitioner's temporary custody, respondent was unable to show that she could provide proper care and custody of MT and RT, as evidenced by her failure to address her mental health issues and inability to maintain suitable housing. Respondent failed to provide proper care and custody of MT and RT by ensuring that MT and RT would be able to live in a home that was not excessively cluttered, dirty, and lacked running water. Respondent also failed to comply with the parent-agency agreement by participating in all of her scheduled individual counseling sessions and seeking psychiatric treatment. "[F]ailure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003).

With regard to the evidence that respondent's mental illness hindered her ability to provide proper care and custody of MT and RT, respondent argues that she was never properly diagnosed with a mental illness, and that her therapist, Dr. Karen Perez, gave unreliable testimony regarding respondent's mental health. However, respondent herself previously admitted that she had "mild [to] moderate" mental health issues. Also, Dr. Perez formally diagnosed respondent with "bipolar mania [with] hypersexual[] undertone[s]." Dr. Perez, who had a doctorate in psychology, had years of experience working with mentally ill individuals and was qualified at trial as an expert in medical and forensic psychology. Thus, contrary to respondent's argument, Dr. Perez was qualified to diagnose respondent with a mental illness. Based on the evidence presented, the trial court did not clearly err in finding that respondent failed to provide proper care and custody of her children. Additionally, respondent had approximately four years to address her mental illness and maintain housing fit for MT and RT to live in, and yet failed to do so. Therefore, the trial court did not clearly err in finding that respondent would not be able to provide proper care and custody of MT and RT within a reasonable amount of time in the future.

III. MCL 712A.19b(3)(j)

The trial court properly concluded that clear and convincing evidence existed to support the termination of respondent's parental rights under MCL 712A.19b(3)(j).

MCL 712A.19b(3)(j) provides:

(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .


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(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. [MCL 712A.19b(3)(j); In re White, 303 Mich App at 710.]
If returned to respondent's custody, MT and RT would be at risk of harm primarily because respondent did not have the capacity to understand that allowing MT and RT to live in a house or apartment that was cluttered, dirty, and lacked running water, was detrimental to their health and welfare. When respondent was asked whether it would be appropriate for MT and RT to live with her in her apartment, despite the fact that CPS workers had recently deemed it unfit for children to live in, respondent stated, "If I can live there, they can live there," and demonstrated no understanding of the concept that allowing MT and RT to live in squalid conditions could place them at risk of harm. Respondent also displayed no capacity to understand that her behavior toward MT and RT was frequently improper. Respondent admitted that she licked and bit MT and RT's ears, and kissed and touched them inappropriately, but refused to alter her behavior, despite being told that it appeared inappropriate and that it made MT and RT uncomfortable. MT and RT made it clear that they did not want respondent to kiss, lick, or touch them inappropriately, but instead of respecting their personal space and bodily autonomy, respondent reportedly told them, "I'm your mother. I can touch you any way I want."

Further, evidence in the first supplemental petition for termination of respondent's parental rights stated that respondent had previously sexually abused MT and RT's elder sister, SW. At the statutory bases and best-interest hearing, Dr. Perez testified that she believed MT and RT would be at risk of being sexually abused or molested if returned to respondent's custody. Respondent's conduct, even if not caused by mental illness, suggests that returning MT and RT to respondent's care could be detrimental to their health and well-being, and that it is reasonably likely that they could be placed at risk of harm while in respondent's custody. Therefore, the trial court did not clearly err in concluding that clear and convincing evidence supported termination of respondent's parental rights under MCL 712A.19b(3)(j).

Affirmed.

/s/ Michael J. Kelly

/s/ David H. Sawyer

/s/ Jane E. Markey


Summaries of

In re Teubert

STATE OF MICHIGAN COURT OF APPEALS
Nov 27, 2018
No. 342405 (Mich. Ct. App. Nov. 27, 2018)
Case details for

In re Teubert

Case Details

Full title:In re TEUBERT, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Nov 27, 2018

Citations

No. 342405 (Mich. Ct. App. Nov. 27, 2018)