Opinion
No. 334501
06-20-2017
In re VILLALOBOS, Minors.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 13-810832-NA Before: JANSEN, P.J., and MURPHY and BORRELLO, JJ. PER CURIAM.
Respondent-mother appeals as of right two circuit court orders. The July 26, 2016 order terminated respondent's parental rights to her three oldest minor children, IBV, MV, and GV pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). The July 22, 2016 order terminated respondent's parental rights to her youngest minor child, JBV, pursuant to MCL 712A.19b(3)(g) and (j). For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
On July 25, 2013, petitioner, the Department of Health and Human Services (DHHS), filed a complaint regarding the three older children. The accompanying petition detailed a history of domestic violence between respondent and respondent father as well as by respondent father against the children and the family dog. As a result, in 2011, the children were placed in a guardianship. Meanwhile, respondents were given a court-structured plan. An Oakland County court briefly terminated the guardianship in 2013, but it was reinstated because respondents failed to comply with the court-structured plan. DHHS alleged that respondents had "serious health problems and are confused." DHHS alleged that the home environment was unfit and the parents had substantially failed to comply with the court-structured plan for the children. DHHS further alleged that respondents neglected or refused to provide proper and necessary support, education, medical, surgical, or other care necessary for the children's health or morals, or respondents had subjected the children to a substantial risk of harm, or abandoned the children without proper custody or guardianship.
At the time of this petition, JBV was not yet born.
The court took jurisdiction of the children and transferred jurisdiction to the Family Division of Oakland Circuit Court. At a hearing on October 14, 2013, respondent pleaded no contest to the allegations in the petition. The trial court entered an order of disposition, ruling that reasonable efforts should be made to preserve and reunify the family.
Respondent entered a parent-agency agreement in November 2013. She agreed to attend therapy to achieve emotional stability, attend parenting skills classes, submit to random drug screens, participate in a substance abuse assessment, attend domestic violence counseling, submit to a psychological evaluation and attend to issues involving her physical health. She also agreed to provide a safe, clean, loving, and nurturing environment, to obtain employment, and to refrain from criminal activity.
The trial court held several permanency planning hearings where respondent made some progress in some areas of the parent-agency agreement, but was not in full compliance with the plan. Respondent-father substantially complied with his parent-agency agreement and the court eventually dismissed him from the proceeding and he was reunited with the three older children.
On August 29, 2015, respondent gave birth to JBV. On September 8, 2015, petitioner filed a petition requesting termination of respondent's parental rights to JBV under MCL 712A.19b(3)(g), (i), (l), (j), and (k)(iii). JBV was experiencing withdrawal symptoms and required medical intervention. The referee found that it was contrary to the welfare of JBV to be returned to respondent and placed him with DHHS.
On September 22, 2015, petitioner filed a supplemental petition requesting termination of respondent's parental rights of the older children under MCL 712A.19b(3)(c)(i), (g), and (j). The supplemental petition alleged that respondent neglected or refused to provide proper and necessary support, education, medical, surgical, or other care necessary for the children's health or morals, or respondent had subjected the children to a substantial risk of harm, or abandoned the children without proper custody or guardianship. The supplemental petition further alleged that the home environment was unfit. Petitioner alleged that respondent still had not complied or benefited from the parent-agency treatment plan, and her ongoing prescription substance abuse placed the children at risk of harm. She failed to maintain employment because of attendance problems and she was being evicted from her trailer because of nonpayment of rent. Respondent was charged with driving on a suspended license three times from April 2015 to August 2015. Visitation with the children was supervised because of concerns regarding respondent's drug use and inappropriate discussions with the children.
At the permanency planning hearing on September 29, 2015, respondent was in jail resulting from a bench warrant. The court suspended all of her parenting time.
On November 20, 2015, respondent entered a plea of no contest to the statutory grounds alleged in the supplemental petition regarding the three oldest children—IBV, MV, and GV. DHHS explained that respondent was willing to enter a plea with the understanding that the best-interest hearing would not be held for four months. Based on the plea, the trial court found that a statutory basis existed for terminating respondent's parental rights to the older three children under MCL 712A.19b(3)(c)(i), (g), and (j).
At a hearing on February 29, 2016, respondent pleaded no contest to the allegations in the petition regarding JBV under MCL 712A.19b(3)(b)(i), (g), (l), (j), and (k)(iii). The trial court found that a statutory basis existed for terminating respondent's parental rights of JBV under MCL 712A.19b(3)(g) and (j).
A best-interest hearing was conducted from March 2016 until June 2016. Foster care specialist Stacy Carmichael testified that she was assigned to the children in August 2013. She testified that DHHS recommended termination of respondent's parental rights to the older children based on respondent's substance abuse, mental health problems, and failure to comply with the law. Carmichael was concerned about respondent father's and respondent's ability to coparent the older children; she anticipated that respondent would "sabotage" the children's stability.
When Carmichael took the case in 2013, respondent had had a substance abuse problem for about eight years. There was a history of alcohol and Xanax use during her pregnancies with MV and GV. In her psychological assessment, respondent denied being an addict and abusing prescription pills. At the best-interest hearing, however, respondent admitted that she is an addict. Respondent testified that her drug addiction started with benzodiazepines in 2005, which she later combined with opiates. Respondent maintained, however, that she never abused Tramadol.
The best-interest hearing focused on respondent's substance abuse problem during three periods of time: (1) during her pregnancy with JBV, (2) between the pregnancy and the best-interest hearing, and (3) during the best-interest hearing. Carmichael explained that following the psychologist's recommendation, DHHS prohibited respondent from using non-narcotic pain medications in the treatment plan. Respondent nevertheless refilled prescriptions during her pregnancy with JBV for the narcotic, Tramadol, with different doctors and at different pharmacies. Drug testing during her pregnancy also revealed erratic and sometimes lethal levels of Tramadol in her system. As a result, DHHS feared respondent was abusing Tramadol while pregnant.
Dr. Vikaa Shah, certified in pain management and anesthesiology, testified that he advised respondent that she should not be taking the drug while pregnant and informed her of the risks involved. Respondent nevertheless elected to continue with her 100 milligrams every six hours and obtained additional prescriptions from two other practitioners.
JBV was born suffering from severe withdrawal as a result of respondent's use of Tramadol during the pregnancy. Respondent admitted that, after JBV's birth, she relapsed and restarted abusing morphine. From that time until the March 2016 best-interest hearing, respondent missed 27 out of 57 random drug screens. She went to Sacred Heart for inpatient rehabilitation in late October 2015, but did not complete the program because she was medically discharged. She was supposed to return to rehabilitation when her health problem was solved, but did not do so. Thereafter, respondent attended 9 out of 14 individual substance abuse sessions and 10 out of 17 group sessions. Until the best-interest hearing, respondent's drug screens were negative, but she tested positive for alcohol (above .08) on December 31, 2015. The psychological report recommended that respondent obtain a sponsor and attend NA/AA, but Carmichael testified that respondent did not do so.
On April 25, 2016, respondent testified that she was clean and committed to using her support system to remain drug free. However, she submitted to a drug screen that day and the results were positive for Tramadol. Although respondent claimed that she did not take any Tramadol before or after her April 22 or 23 visit to urgent care, DHHS called a rebuttal witness, foster care worker Katrina Grundy, who testified that an April 14, 2016 drug screen was also positive for Tramadol. Since April 2016, respondent had three positive drug screens and three missed drug screens.
Respondent was diagnosed with borderline personality disorder. Carmichael and respondent's therapist, Cristen Phillips, both testified that respondent resisted the diagnosis. Carmichael reported that respondent exhibited volatile emotional outbursts and self-destructive behavior. Respondent was off her mood stabilizer, which caused anxiety, panic attacks, depression, and "all kinds of horrible things." At one point, respondent's girlfriend and respondent's father ultimately called 9-1-1 because respondent threatened suicide. In the 9-1-1 call, respondent's girlfriend reported that respondent took all of her Tramadol in one day and "does muscle relaxers." Respondent was involuntarily admitted to a mental hospital.
Respondent also struggled to maintain employment. Her last pay stub was from January 2016, and for the month prior to that period, the most she worked was six hours a week. Since 2013, respondent had had four different jobs and her inability to maintain employment was related to absences or quitting before she was fired for poor attendance. As of the June 9 best-interest hearing, respondent had obtained a new position at Meijer as a deli clerk.
Carmichael testified that respondent never had housing that she funded herself. At the time of the best-interest hearing, respondent was leasing a three-bedroom mobile home with her girlfriend, who was paying for the lot rent and mortgage. Respondent was responsible for utilities. In addition, respondent was cited for driving on a suspended license four times in 2015, and incarcerated for various periods as a result; she was on probation at the time of the best-interest hearing.
Carmichael also addressed respondent's history of visitation and the bond with her children. Visitation had been supervised for all but about two months of the proceedings. It was suspended altogether in September 2015. In total, respondent missed approximately 30 percent of her visits for various reasons, such as incarceration, hospitalization, or being in too much pain. Although respondent attended parenting classes, Carmichael had concerns that she did not benefit from them. In addition, respondent refused to consent to JBV's vaccinations until he was one year old, reporting that two of her older children responded negatively to vaccinations when they were younger than one year old. Respondent father reported to Carmichael that there were no side effects with the other children. The doctor said the vaccinations were in the child's best interests and any delay could leave him at risk for multiple life-threatening infections. While respondent had a bond with the older children at the beginning of the case, Carmichael opined, "Towards the end, not so much."
Respondent father married another woman shortly before the best-interest hearing and the woman was an integral part of the reunification with the children. All three older children were doing well with the couple. They had friends and felt wanted and wanted to be adopted by their step-mother.
On July 18, 2016, the trial court issued an opinion terminating respondent's parental rights to all four children. The trial court found that, even though a bond existed at one time between the oldest three children and respondent, the bond was now "strained, if one exists at all." The children had no contact with respondent since September 2015. The trial court found that respondent's substance abuse problem had lasted for more than a decade, she failed to complete an inpatient substance abuse program, and she was dishonest to the court about being drug free when testing proved that she was using Tramadol; she also refused to take responsibility for JBV's dependence on Tramadol when he was born. The trial court found that respondent did not benefit from services and was not sober. Respondent continued to make poor parenting choices by refusing to allow JBV to be vaccinated, which was contrary to medical advice. The trial court also found that respondent failed to benefit from services or address her mental health concerns, as evidenced by her hospitalization for a suicide attempt in April 2016, and her claim to be in a stable relationship, despite the record suggesting that her relationship ended and she is being evicted from the girlfriend's home. Moreover, the psychological evaluation recommended termination. The trial court found that the children had not been in respondent's care since 2011, and they were in stable placements, where they could be adopted. Finally, the trial court doubted respondent's willingness or ability to comply with court orders, including attempts for reunification, as evidenced by her repeated decisions to drive without a license. The court entered orders terminating respondent's parental rights to all four children as set forth above. This appeal ensued.
I. STATUTORY GROUNDS
In her first claim on appeal, respondent argues that the trial court failed to obtain necessary factual support under MCR 3.971 for her no contest pleas to the petitions for termination, and thus could not conclude that clear and convincing evidence demonstrated the existence of statutory grounds for termination. We disagree.
Generally, a respondent must first raise a challenge to a plea in a motion before the trial court to preserve the issue. See In re Zelzack, 180 Mich App 117, 125-126; 446 NW2d 588 (1989). Respondent did not challenge her pleas in the trial court. Therefore, her objection to her pleas on appeal is unpreserved. We review unpreserved issues for plain error affecting substantial rights. In re Egbert R Smith Trust, 274 Mich App 283, 285; 731 NW2d 810 (2007).
Pursuant to MCR 3.971, a respondent may enter a plea of admission or no contest to a petition. MCR 3.971(C) requires that a respondent's plea be both voluntary and accurate. Under MCR 3.971(C)(1), a trial court "shall not accept a plea of admission or of no contest without satisfying itself that the plea is knowingly, understandingly, and voluntarily made." And if the respondent enters a plea of no contest, then under MCR 3.971(C)(2) the trial court "shall not question the respondent, but, by some other means, shall obtain support for a finding that one or more of the statutory grounds alleged in the petition are true." Before terminating a parent's rights, a court must find by clear and convincing evidence that one or more of the statutory grounds for termination listed in MCL 712A.19b(3) exists. MCL 712A.19b(3); In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012).
A. THREE OLDER CHILDREN
The trial court found that statutory grounds for terminating respondent's parental rights of the three older children (IBV, MV, and GV) existed pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), which permit 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.
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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.
Based on respondent's plea to the allegations in the supplemental petition and the record offered by DHHS, the trial court found that the conditions that led to the adjudication continued to exist and there was no reasonable likelihood that the conditions would be rectified within a reasonable time. MCL 712A.19b(3)(c)(i). Allegations in the original petition included: (1) domestic violence, and (2) the failure to comply with the court-structured plan during guardianship. As respondent argues, the domestic violence problem was resolved because respondent and respondent father were ultimately divorced and DHHS had created separate plans for each parent. But the record demonstrated that respondent still failed to comply with her parent-agency agreement after the court took jurisdiction. Under that agreement, respondent was only allowed to take non-narcotic medication because of her long drug history. At family team meetings, respondent was repeatedly urged to stop taking Tramadol—a narcotic. Respondent nevertheless continued to take the drug. Respondent pleaded no contest to allegations in the petition that she had a lengthy history of prescription drug abuse, she refused to refrain from prescription drug use, and she was not compliant with the parent-agency agreement. Respondent only counters that the medicine was prescribed, but she cannot refute evidence that she disregarded a plan that did not discriminate between prescribed and illegal narcotics use. Therefore, the record establishes that a condition that led to the adjudication—failure to comply with the plan—continued to exist.
Moreover, given that respondent had been unable to resolve her substance abuse problems for more than a decade (including more than four years while the children were placed either with guardians or under the court's jurisdiction), and respondent again relapsed during the best-interest hearing, there was no reasonable likelihood that this condition would be rectified within a reasonable time considering the children's ages. Supporting this conclusion, respondent pleaded no contest to the allegation in the petition that there was "no current service provision in place/available that would keep the children safe." The trial court did not clearly err in determining that the record supported termination of respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i). Thus, there was no plain error under MCR 3.971(C)(2) in accepting respondent's plea regarding the older children.
B. THE YOUNGEST CHILD
The trial court terminated respondent's parental rights to the youngest child (JBV) pursuant to MCL 712A.19b(3)(g) and (j). Respondent pleaded no contest to the allegation in the petition that her continued substance abuse placed JBV at a substantial risk of harm. JBV had already suffered severe withdrawal at birth from respondent's use of narcotics during pregnancy. In addition, respondent's mental health issues continued to disrupt her interpersonal relationships, employment, and housing. Because her problems had been ongoing for years and respondent pleaded no contest to the allegation in the petition that there were "no current service provisions in place/available that would keep the child safe," there was no reasonable expectation that respondent would be able to provide proper care and custody within a reasonable time. In addition, there was a reasonable likelihood that JV would be harmed if he was returned to respondent's home. Respondent pleaded no contest to the allegation that JV "remaining in the home presents a substantial risk of harm to his life, physical health, or mental well-being." Therefore, the trial court did not clearly err in determining that the record supported termination of respondent's parental rights pursuant to MCL 712A.19b(3)(g) and (j). Thus, there was no plain error in accepting respondent's plea regarding JV.
II. BEST INTERESTS
Next, respondent argues that the trial court clearly erred in finding that termination of her parental rights was in the children's best interests. We disagree.
This Court reviews for clear error the trial court's determination regarding the children's best interests. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). "A trial court's finding of fact 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, 296-297; 690 NW2d 505 (2004) (internal citations omitted).
"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 at 40; MCL 712A.19b(5). "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court should weigh all the evidence available to it in determining the child's best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Factors relevant to a determination of the child's best interests include the child's bond to the parent, the parent's compliance with his or her case service plan, the parent's visitation with the child, the child's need for permanency, stability, and finality, the advantages of a foster home over the parent's home, and the possibility of adoption. Id. at 713- 714. A trial court may also consider a parent's history. See In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009).
The thrust of respondent's claim on appeal is that the trial court clearly erred because she had a bond with the three older children and she wanted a chance to bond with JBV. The trial court found that all of the children loved respondent and respondent loved them, but that any bond with the three older children was strained. IBV told the foster care worker, Stacy Carmichael, that she was done worrying about respondent and not to bother scheduling visitation because respondent would "just cancel." According to Carmichael, MV loved respondent, but both he and GV referred to respondent father's new wife as "mom." GV did not express any feelings about respondent. By the end of the best-interest hearing, all three older children had stopped mentioning respondent to the foster care worker. The trial court found that no bond existed between respondent and JBV because he has had no contact with her since September 2015, shortly after his birth.
To the extent that any bond existed between respondent and the children, a bond is only one factor to consider. The record demonstrates that respondent failed to comply with her parent-agency agreement throughout the proceedings, a period of more than four years, which weighs in favor of termination. See In re White, 303 Mich App at 713 (recognizing that failure to comply with a case service plan is a factor properly weighed in determining the child's best interests). As discussed earlier, the agreement precluded respondent from using narcotics, but she nevertheless continued to use sometimes lethal levels of Tramadol. Respondent attended many substance abuse programs, but failed to complete any residential rehabilitation program as recommended by her substance abuse evaluation. Respondent was required to submit to random drug screens and attend substance abuse treatment, but after JBV's birth and the institution of termination proceedings, she missed nearly 30 screens and more than 10 substance abuse sessions. The trial court found that respondent had not benefitted from substance abuse services because she claimed to be clean and sober, but was actually taking Tramadol, "her most recent drug of choice." Respondent also failed to comply with the parent-agency agreement in other respects, including the provisions requiring her to ensure that only people cleared by DHHS had contact with the children, to maintain appropriate housing and employment, and to refrain from criminal activity.
Respondent's visitation with the children had been supervised for all but about two months of the proceedings, which spanned more than four years. Visitation was suspended altogether in September 2015. In total, respondent missed approximately 30 percent of her scheduled visits. Again, the oldest child urged Carmichael not to schedule future visitations because of an expectation that she would cancel.
The trial court found that respondent was unable to provide stability for any of the children. The trial court noted that both psychological evaluations recommended termination of respondent's parental rights, and respondent's mental health issues continued as late April 2016, when she was suicidal and hospitalized. Moreover, although respondent claimed that she was engaged to her girlfriend, who was allegedly an integral part of her support system and recovery, the trial court found that "the evidence suggests that she may no longer even be in a relationship with the very woman she was planning with."
Respondent argues that termination was unnecessary for the older children, in particular, because respondent father had sole custody and could protect them. But Carmichael testified at the best-interest hearing that this approach risked the children's emotional stability. Specifically, if respondent father was incapacitated, custody would go to respondent. On the other hand, if respondent's rights to the older children were terminated, the step-mother could adopt them. As the trial court found, with respondent father and his new wife, the older children were stable, their needs were being met, and they were doing well. Likewise, Carmichael testified that JBV had been living with his foster family since he was released from the hospital, the family was meeting his needs, and it wanted to adopt him.
Respondent's history was also a relevant consideration with regard to the children's best interests. In re Jones, 286 Mich App at 131. As the trial court found, respondent failed to take responsibility for JBV's withdrawal symptoms by claiming that she was unaware of the risks of taking Tramadol during her pregnancy despite record evidence that doctors and the foster care worker had discussed the risks with her. The court found that respondent also continued to make poor parenting choices. For example, she refused to allow JBV to be vaccinated against medical advice. In addition, the record demonstrates that respondent engaged in unsafe sleep practices with JBV, she discussed inappropriate subjects with the older children, and she fell asleep during visitation with the older children and could not be awakened.
The trial court also reviewed respondent's history of disobeying court orders and concluded that it was unlikely she would comply with its orders related to attempts at reunification. It noted that she had repeatedly driven without a license and disregarded court orders to cease driving, which resulted in several convictions for driving with a suspended license, as well as jail time.
Regardless of a "strained" bond between the older children and respondent, a preponderance of the evidence supports the trial court's determination that termination of respondent's parental rights to all of the children was in their best interests.
Respondent claims that she should have been given more time to reunite with the children because she was pursuing treatment for her mental health issues. However, a March 2016 psychological assessment noted that respondent "has little to no insight into her issues, and fails to take full responsibility for her situation in that she projects much blame outward." The psychologist opined that "it is highly questionable whether she will benefit from services on a long term basis." Weighing the uncertainty of respondent's future mental health against the finality that the trial court found the children needed, we are not left with a definite and firm conviction that a mistake was made. --------
Affirmed.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Stephen L. Borrello