Opinion
No. 345283
03-14-2019
In re A. TOMASZEWSKI, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Schoolcraft Circuit Court Family Division
LC No. 2017-003264-NA Before: RIORDAN, P.J., and MARKEY and LETICA, JJ. PER CURIAM.
Respondent-father appeals by right the trial court's order terminating his parental rights to his minor child pursuant to MCL 712A.19b(3)(i). We affirm.
I. FACTS AND PROCEDURAL HISTORY
Respondent's parental rights to two other children were previously terminated in 2016, due in part to substance abuse and domestic violence. The prior case was initiated after respondent's son informed someone at school that respondent had choked him. Although respondent was offered services in the previous proceedings, he failed to rectify the conditions leading to adjudication during the two years the children were in care. His parental rights to those children were terminated pursuant to MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm to child if returned to parent).
When the minor child in this case was born in February 2017 with drugs in her system, Child Protective Services (CPS) opened a case file and informed respondent that any domestic violence in the home could result in the filing of a termination petition. The file was closed but was reopened in November 2017 because of a report of a domestic incident between respondent and the child's mother. On December 16, 2017, CPS received a report of another domestic incident the day before between respondent, who was intoxicated, and the child's mother, which resulted in severe injuries to the mother. Respondent admitted to a CPS worker that he had "choked the shit out of" the child's mother and was "going to kill her for interfering with [his] child."
A petition was filed to remove the child from the home and to terminate respondent's parental rights at the initial disposition. Respondent pleaded no contest to the allegations in the petition. On May 19, 2018, respondent pleaded guilty to aggravated domestic assault as a result of the December 15th incident. On May 26, 2018, petitioner filed a supplemental petition to terminate respondent's parental rights. The petition requested termination under MCL 712A.19b(3)(l), which at that time authorized termination of parental rights where "[t]he parent's rights to another child were terminated as a result of proceedings under section 2(b) of this chapter or a similar law of another state." See 2017 PA 193.
Certified records of the prior termination proceedings in 2016 involving respondent were admitted at the May 29, 2018 termination hearing. Petitioner presented evidence concerning acts of domestic violence perpetrated by respondent in 2015, along with evidence of more recent incidents in November and December 2017 between respondent and the child's mother. The child's mother testified that respondent would become physically abusive towards her when he became intoxicated. She testified that respondent was "drinking heavily" in the weeks preceding the November and December 2017 incidents. Respondent admitted that he had a substance abuse problem but maintained that he had not used heroin since September 2016. He denied that he had an alcohol problem, but he admitted that during the caseworker's unannounced visit to his home in April 2018, he had consumed alcohol in violation of his bond. He also conceded that he was intoxicated at the time of the December 15, 2017 assault.
After the hearing, but before the trial court issued a decision, petitioner informed the court and the other parties that it had erroneously cited MCL 712A.19b(3)(l) in support of termination where that subsection had been declared unconstitutional in In re Gach, 315 Mich App 83; 889 NW2d 707 (2016). Petitioner asked the court to instead terminate respondent's parental rights under MCL 712A.19b(3)(i), which it maintained had also been established by the evidence presented at the termination hearing. At the time of the post-proof hearing when the trial court rendered its decision, § 19b(3)(i), as amended by 2018 PA 58, effective June 12, 2018, authorized a court to terminate a respondent's parental rights to a child where "[p]arental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights." Respondent fully agreed that the court could consider § 19b(3)(i), but argued that the evidence did not factually support termination under that ground. The trial court disagreed, finding clear and convincing evidence to support termination of respondent's parental rights under § 19b(3)(i). The court also determined that termination of respondent's parental rights was in the child's best interests because respondent's continued struggle with alcohol abuse and domestic violence demonstrated his inability to provide the safety, stability, and permanence the child needed.
The Legislature later amended MCL 712A.19b(3)(l) in an effort to correct the constitutional deficiency. 2018 PA 58.
At the time petitioner submitted its written closing argument on June 8, 2018, MCL 712A.19b(3)(i) provided that a court could terminate parental rights to a child on the basis of clear and convincing showing that "[p]arental rights to 1 or more siblings of the child ha[d] been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents ha[d] been unsuccessful." See 2017 PA 193. --------
II. STANDARD OF REVIEW
If a trial court finds that a single statutory ground for termination has been established by clear and convincing evidence and that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is mandated to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5); In re Beck, 488 Mich 6, 10-11; 793 NW2d 562 (2010); In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). "This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established and its ruling that termination is in the children's best interests." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011); see also MCR 3.977(K). "A finding . . . is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed[.]" In re BZ, 264 Mich App 286, 296; 690 NW2d 505 (2004). In applying the clear error standard in parental termination cases, "regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). The trial court must "state on the record or in writing its findings of fact and conclusions of law[,] [and] [b]rief, definite, and pertinent findings and conclusions on contested matters are sufficient." MCR 3.977(I)(1).
III. STATUTORY GROUND FOR TERMINATION
Once again, under MCL 712A.19b(3)(i), a court is authorized to terminate a respondent's parental rights to a child where "[p]arental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights." Respondent argues that the trial court erred in finding that he failed to rectify the conditions that led to the prior termination of parental rights. The conditions that led to the prior termination of respondent's parental rights involved substance abuse and domestic violence. The earlier case was initiated because of an incident in which respondent reportedly choked his son. The present case was commenced because of a domestic assault in which respondent admittedly choked the child's mother. The trial court found that the evidence showed that respondent's past efforts to address his substance abuse and domestic violence issues were unsuccessful. Subsequent to the 2016 termination of respondent's parental rights, respondent continued to engage in domestic violence. Respondent was drinking heavily during the weeks leading up to the December 2017 assault and respondent admitted that he was intoxicated at the time. He acknowledged choking the child's mother and pleading guilty to aggravated domestic assault. Respondent also admitted that he violated his bond by consuming alcohol in April 2018, but he continued to deny that he had a problem with alcohol. The trial court found that these "behaviors occurred despite the knowledge that his parental rights had been terminated on earlier children, establishing a zero tolerance for inappropriate home environment and parental decisions." Ample evidence supported the trial court's conclusion that respondent failed to markedly improve his long-term alcohol problem and the anger issues that led to domestic violence and, therefore, failed to rectify the conditions that led to the prior termination. Thus, the trial court did not clearly err by finding that the statutory ground for termination under MCL 712A.19b(3)(i) was established by clear and convincing evidence.
To the extent that respondent argues that the earlier version of § 19b(3)(i) applied, 2017 PA 193, requiring proof that respondent's attempts at rehabilitation since the prior termination had been unsuccessful, the trial court's finding that respondent failed to rectify the conditions that led to the prior termination of parental rights, as required by the current language in § 19b(3)(i), 2018 PA 58, is very comparable to finding that rehabilitation attempts have been unsuccessful since the prior termination. Thus, assuming for the sake of argument that the previous version of § 19b(3)(i) did apply, reversal is unwarranted.
Respondent also appears to contend that the incident of domestic violence that triggered the termination proceedings against respondent resulted in a delayed or deferred sentence for the aggravated domestic assault conviction, meaning that ultimately he could be treated as never having been convicted. Therefore, according to respondent, the assault should not have been given such weight that it caused the termination of his parental rights. The logic of this argument escapes us. The bottom line is that respondent committed a vicious assault against the child's mother regardless of what transpired in the criminal case or what may transpire down the road. Respondent, citing In re Pops, 315 Mich App 590; 890 NW2d 902 (2016), also asserts that the assault in and of itself did not justify the termination of his parental rights. Respondent's reliance on In re Pops is misplaced: The panel in that case simply indicated that mere incarceration, without anything more, is not an adequate reason to terminate parental rights. Id. at 599. Here, the assault has to be viewed in context, taking into consideration the prior termination proceedings, respondent's ongoing problem with domestic violence and his having being warned of its consequences. Reversal is unwarranted.
IV. BEST INTERESTS
Respondent also argues that the trial court clearly erred by finding that termination of his parental rights was in the child's best interests. We disagree.
The trial court did not clearly err by finding that there existed a preponderance of evidence showing that termination of respondent's parental rights was in the child's best interests. Despite some improvement since the prior termination case, respondent continued to struggle with the issues that resulted in the earlier termination of his parental rights, including domestic violence and alcohol abuse. Respondent continued to make poor lifestyle choices since the birth of the child despite knowing that CPS would file a termination petition if it learned of domestic violence in the home. Respondent was intoxicated on December 15, 2017, when he choked the child's mother to the point of unconsciousness and threatened to kill her while the child was in the home. Although the court acknowledged the bond between respondent and the child, it focused heavily on the child's need for safety, stability, and permanence, finding that respondent was not able to provide the child with these needs at this point. Respondent relies on his voluntary participation in services for four months after the child was removed from the home. But, despite being offered services, he failed during the prior proceedings to rectify the conditions of adjudication, which led to the termination of his parental rights. These were the same conditions that prompted petitioner here to again request termination of his parental rights. In sum, the trial court did not clearly err when it determined that termination of respondent's parental rights was in the child's best interests.
We affirm.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Anica Letica