Opinion
No. 332243 No. 332244
01-24-2017
In re S. L. WALKER, Minor. In re WALKER/ROBINSON, Minors.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 04-433195-NA Before: BECKERING, P.J., and SAWYER and SAAD, JJ. PER CURIAM.
In Docket No. 332243, respondent-father appeals as of right from the order terminating his parental rights to his child, S. L., pursuant to MCL 712A.19b(3)(g) and (j). In Docket No. 332244, respondent-mother appeals as of right from the same order terminating her parental rights to S. L. and to a younger child, N. J., pursuant to MCL 712A.19b(3)(g), (i), and (j). We affirm.
Respondent-father argues that he was denied his right to an attorney at the permanent custody hearing. We disagree. We review this unpreserved constitutional issue for plain error that affected substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
A respondent in a termination of parental rights proceeding has the right to counsel. MCL 712A.17c(4); MCR 3.915(B)(1)(b); In re Powers, 244 Mich App 111, 121-122; 624 NW2d 472 (2000). In this case, respondent-father was represented by appointed counsel throughout the proceedings until he asserted his right to represent himself at the January 27, 2016 permanent custody hearing. See MCL 712A.17c(6); MCR 3.915(B)(1)(c). The trial court then appointed an attorney to represent respondent-father in an advisory capacity. Contrary to respondent-father's argument that the appointed attorney withdrew from the case, the record shows that the trial court denied the attorney's request to withdraw. Furthermore, we find no error in the trial court's denial of respondent-father's request for the appointment of substitute counsel at the start of the second day of the permanent custody hearing. "Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial proceedings." People v Conley, 216 Mich App 41, 46; 549 NW2d 353 (1996). Good cause exists "where a legitimate difference of opinion develops between a defendant and his appointed counsel with regard to a fundamental trial tactic." People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991). Respondent-father did not show good cause for the appointment of substitute counsel. Furthermore, appointing new counsel on the second day of the permanent custody hearing would have delayed the proceedings and prolonged the uncertain status of these children, who had been waiting in foster care for most of their lives. Because the trial court offered respondent-father the opportunity to have an appointed attorney represent him at the permanent custody hearing, and then appointed advisory counsel when respondent-father refused the offer, respondent-father has not shown that he was denied the right to counsel.
In Docket No. 332244, respondent-mother argues that the trial court clearly erred in finding that the statutory grounds for termination set forth in MCL 712A.19b(3)(g), (i), and (j) were proven by clear and convincing evidence. We disagree. "The clearly erroneous standard shall be used in reviewing the court's findings on appeal from an order terminating parental rights." MCR 3.977(K). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
Under MCL 712A.19b(3)(g), the court may terminate a parent's parental rights to a child if "[t]he 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." By the time of the permanent custody hearing, S. L. was six years old and had already been removed from her home three times for issues including domestic violence, suspected sexual abuse, and unstable housing. In 2014, respondent-mother's unsupervised visits with S. L. were discontinued because respondent-mother was taking the child to visit respondent-mother's sister, who had been deemed an unsuitable placement, and S. L. returned from the visits smelling like marijuana.
In addition, the evidence showed that respondent-mother had seven different residences between September 2013 and November 2015, and that she continued to struggle with anger management. The police were called to the agency on numerous occasions due to respondent-mother's verbal altercations with staff, respondent-father, and other parents. While there was evidence that respondent-mother may have made recent progress in resolving her domestic violence issues, given the amount of time respondent-mother had to resolve the issues that brought S. L. and N. J. into care, we agree with the foster care supervisor's testimony that "there is not enough progress made in order for the parents to convince me that these children would be safe in their care without supervision." Because respondent-mother had not resolved the issues that brought her children into care despite receiving services since 2010, we find no error in the court's finding that there was no reasonable expectation that respondent-mother would be able to provide proper care and custody for the children within a reasonable time. We therefore find no error in the court's ruling that the statutory ground for termination set forth in MCL 712A.19b(3)(g) was proven by clear and convincing evidence.
Under MCL 712A.19b(3)(i), the court may terminate a parent's parental rights to a child if the court finds by clear and convincing evidence that "[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 prior attempts to rehabilitate the parents have been unsuccessful." MCL 712A.19b(3)(i). There was evidence that respondent-mother's history with Children's Protective Services (CPS) went back to 2006, and that her parental rights to three other children had been terminated due to mental health, housing, and criminal history issues. Furthermore, there was testimony that prior attempts to rehabilitate respondent-mother had been unsuccessful. The evidence showed that, despite receiving services for many years, respondent-mother was not able to provide a safe and stable home for S. L. and N. J. at the time of the permanent custody hearing. Accordingly, we find no error in the court's finding that the statutory ground for termination set forth in MCL 712A.19b(3)(i) was proven by clear and convincing evidence.
The court may terminate a parent's parental rights to a child under MCL 712A.19b(3)(j) if the court finds by clear and convincing evidence that "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." The evidence showed that, while respondent-mother had made some recent progress in dealing with the issues that placed S. L. and N. J. at risk of harm, concerns about respondent-mother's ability to protect the children from harm remained at the time of the permanent custody hearing. For example, while there was evidence that respondent-mother had recently expressed that she no longer wanted a relationship with respondent-father, there was other evidence indicating that she allowed him to live in the home for two to three months in the year before the permanent custody hearing. In addition, while respondent-father was known to have a conviction for criminal sexual conduct involving a minor, there was evidence that respondent-mother allowed respondent-father into the home with S. L. Respondent-mother's aggressive behavior was also a concern. Accordingly, we find no error in the court's finding that the statutory ground for termination set forth in MCL 712A.19b(3)(j) was proven by clear and convincing evidence.
Finally, respondent-mother argues that the court erred in finding by a preponderance of the evidence that termination was in the best interests of the children. A trial court's findings regarding a child's best interests are reviewed for clear error. MCR 3.977(K); In re Laster, 303 Mich App 485, 496; 845 NW2d 540 (2013). When determining a child's best interests, the 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 suitability of other homes. In re Olive/Metts, 297 Mich App 35, 42; 823 NW2d 144 (2012). 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 children, the children's well-being while in care, and the possibility of adoption. In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
While there was evidence that respondent-mother loved the children and that she interacted well with them during visitation, a preponderance of the evidence showed that termination of respondent-mother's parental rights was in the best interests of each child. The older child, S. L., had been moved in and out of respondent-mother's home for years, and the younger child, N. J., had never lived with respondent-mother. Despite the amount of time respondent-mother had to work on the issues that prevented the return of her children, she still was not able to provide a safe and stable home at the time of the permanent custody hearing. These children should not have to wait any longer for the permanence and stability they need. Furthermore, at the time of the permanent custody hearing, N. J. was in an adoptive home, and a potential adoptive family for S. L. had been identified. Accordingly, we find no clear error in the court's finding that termination was in the best interests of each child.
We therefore affirm the court's order terminating the parental rights of respondent-father to S. L. and of respondent-mother to both S. L. and N. J.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Henry William Saad