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In re Tomcsik

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 336694 (Mich. Ct. App. Jul. 18, 2017)

Opinion

No. 336694

07-18-2017

In re TOMCSIK, Minors.


UNPUBLISHED Wayne Circuit Court Family Division
LC No. 12-507348-NA Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ. PER CURIAM.

The circuit court terminated respondent-mother's parental rights to her two teenaged daughters after more than four years of court involvement. Respondent contends that the court should have continued the children's guardianship with relatives while retaining her rights. We affirm.

I. BACKGROUND

Respondent is no stranger to the child protective system. The Department of Health and Human Services (DHHS) first provided services to respondent and the children's father in 2010, after substantiating allegations of physical abuse, failure to protect, and substance abuse. Respondent continued to use an excess of prescription medication. And the parents repeatedly drove the girls to school while intoxicated, leading to another Child Protective Services (CPS) complaint in December 2011. The current petition was filed in May 2012, based on several physical attacks by the father against the elder daughter. The daughter reported that respondent did nothing to protect her and tried to hide the assaults from authorities. The court subsequently took jurisdiction over the children based on both parents "unresolved substance abuse problems [involving] alcohol and [prescription] meds," the father's physical abuse of the elder daughter, and respondent's failure to protect.

The DHHS initially placed the children with their maternal grandparents. The court removed the children and placed them in nonrelative foster care by the end of 2012 as the elder child was not enrolled in school, the girls had not received medical care, and the grandparents failed to follow through with licensing requirements. The girls were eventually placed with a paternal great-uncle and aunt in Marlette, approximately two hours away from respondent's home in Taylor.

The children's father did not actively participate in planning for the children as he was severely ill and ultimately died of liver failure in 2013. Respondent's service plan included psychological and psychiatric evaluations, family and individual counseling, substance abuse treatment, drug screens, and parenting classes. Respondent was also required to secure housing and employment. Respondent initially showed some progress and earned unsupervised visitation. The court named the aunt and uncle as legal guardians and closed the case. The matter was reinstated for court supervision and the guardianship ended, however, when respondent suddenly changed trajectory.

MCL 712A.19a(12) provides that court jurisdiction "shall be terminated after the court appoints a guardian . . . ."

Respondent essentially ceased complying with her service plan. She stopped attending visits, citing health and transportation issues, but claimed to have contact with her children on Facebook. Respondent was repeatedly dropped from counseling services and parenting classes for nonattendance, only to reenroll and begin the cycle anew. Respondent rarely appeared for drug screens, citing a litany of excuses. For example, respondent asserted that her license had been stolen and she was not allowed to test without it, she thought she was only required to screen once a week rather than three times, and she did not know the screening locations. Respondent often tested positive for prescription medications and on one occasion had an extremely high level of Xanax in her system, evidencing excessive use over time. Respondent claimed to suffer from a laundry list of physical and psychological ailments requiring her use of a plethora of prescription medications. And the hearing referee and caseworker observed that respondent was visibly impaired and unable to remain alert due to medication ingestion during several parenting time sessions and court hearings. Following once such hearing, respondent was required to immediately provide a drug screen and tested positive for opiates.

Respondent received a high score for hypochondria on a clinical assessment during her psychological evaluation, but the doctor did not diagnose her with this condition.

The DHHS sought termination of respondent's parental rights in an October 3, 2016 supplemental petition. The DHHS noted that respondent never completed parenting classes, individual therapy, or substance abuse counseling despite several agency referrals to service providers. The petition described that respondent had never been compliant with drug screens and since July 19, 2016, had missed 34 out of 35 screens. Respondent tested positive for benzodiazepines and tramadol in June 2016. Respondent had not seen her children since a chance encounter at a July 14, 2016 funeral and had "never consistently visited her children." Although respondent claimed to have a job earning $600 weekly, she never provided proof of employment. Moreover, respondent lived with her parents and avoided DHHS attempts to reevaluate the propriety of this home as a placement for her children.

On January 11, 2017, the circuit court terminated respondent's parental rights under MCL 712A.19b(3)(c)(i), (g), and (j), after accepting a hearing referee's initial findings. The referee noted that the case had been ongoing for nearly 4½ years and yet "[s]ubstance abuse seems to still be an issue." The referee explained that respondent had never complied with drug screening requirements and had "come to hearings and . . . looked like [she was] going to pass out at the table." The termination hearing was "one of the few hearings that [respondent had] been alert and awake the entire time." Even though respondent was well aware that substance abuse was a serious concern for her, she listed six or seven medications that she was taking at the time of the hearing. And she had not provided any medical documentation or signed medical releases for the court to verify her alleged medical conditions. Overall, the referee concluded that respondent had not remedied the conditions that led to adjudication, that her substance abuse prevented her from providing proper care and custody for the children, and that the children would face likely harm if returned to respondent's care.

These factors provide:

The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:


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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 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.


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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.


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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.

Respondent now appeals.

II. ANALYSIS

Respondent does not challenge the evidentiary support for the statutory termination grounds cited by the circuit court. Rather, respondent contends that termination of her parental rights was not in her children's best interests and the court should have instead placed the children in a guardianship with their aunt and uncle.

"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The lower court should weigh all the evidence available to it in determining the child's best interests. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). Relevant factors include "the child's bond to the parent, the parent's parenting ability, [and] the child's need for permanency, stability, and finality. . . ." Olive/Metts, 297 Mich App at 41-42 (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, [and] the children's well-being while in care. . . ." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014). A parent's substance abuse history is relevant, In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001), as are the advantages of the child's foster placement over placement with the parent, In re Foster, 285 Mich App 630, 634-635; 776 NW2d 415 (2009), and the length of time the child has been in care, In re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015). Placement with relatives weighs against termination, however, and the court must "explicitly address" this factor. In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010); Olive/Metts, 297 Mich App at 43. "With respect to the trial court's best-interests determination, we place our focus on the child rather than the parent." In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016), citing Moss, 301 Mich App at 87.

In MCL 712A.19a(4), the Legislature expressed its intent that permanency planning must include consideration of a guardianship and permanent placement "with a fit and willing relative:"

At or before each permanency planning hearing, the court shall determine whether the agency has made reasonable efforts to finalize the permanency plan. At the hearing, the court shall determine whether and, if applicable, when the following must occur:

(a) The child may be returned to the parent, guardian, or legal custodian.

(b) A petition to terminate parental rights should be filed.

(c) The child may be placed in a legal guardianship.

(d) The child may be permanently placed with a fit and willing relative. . . .
The statute continues:
(8) If the court determines at a permanency planning hearing that a child should not be returned to his or her parent, the court may order the agency to initiate proceedings to terminate parental rights. . . . The court is not required to order the agency to initiate proceedings to terminate parental rights if 1 or more of the following apply:

(a) The child is being cared for by relatives.


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(9) If the agency demonstrates under subsection (8) that initiating the termination of parental rights to the child is clearly not in the child's best interests, or the court does not order the agency to initiate termination of parental rights to the child under subsection (8), then the court shall order 1 or more of the following alternative placement plans:


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(c) Subject to subsection (11), if the court determines that it is in the child's best interests, appoint a guardian for the child, which guardianship may continue until the child is emancipated.

MCL 712A.19a does not require a court to create a guardianship with relatives in lieu of terminating a parent's rights to his or her child. Indeed, the statute contemplates that termination may still be in the child's best interests despite his or her placement with relatives. See In re McIntyre, 192 Mich App 47, 52; 480 NW2d 293 (1991). The circuit court in this case did consider guardianship during the permanency planning process and actually instituted a guardianship for a period of time. However, without direct court supervision, respondent's substance abuse worsened, impacting her parenting time with the children. Accordingly, the court had experiential evidence that placing the children in a guardianship in lieu of terminating respondent's parental rights was not in the children's best interests.

And termination was otherwise supportable. Respondent and her children love each other and share a bond. But by the time of the termination hearing, respondent had not seen her children in several months and the girls reported having "no interest in visiting with their mother" because she had "caused the chaos in their life." That chaos would endure as respondent continued to overuse prescription medication, rendering her lethargic and impaired. The children have been the subject of child protective actions since 2010 and have been in care since May 2012. Respondent was afforded extensive time and services, which she failed to utilize or benefit from. Her children cannot be left adrift indefinitely. The girls are thriving with their aunt and uncle. Under the circumstances, the circuit court's conclusion that termination was in the children's best interests is supported by a preponderance of the evidence.

We affirm.

/s/ Elizabeth L. Gleicher

/s/ Michael J. Kelly

/s/ Douglas B. Shapiro


Summaries of

In re Tomcsik

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 336694 (Mich. Ct. App. Jul. 18, 2017)
Case details for

In re Tomcsik

Case Details

Full title:In re TOMCSIK, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Jul 18, 2017

Citations

No. 336694 (Mich. Ct. App. Jul. 18, 2017)