Opinion
No. 339376
03-20-2018
In re C. R. WALKER, Minor.
UNPUBLISHED Bay Circuit Court Family Division
LC No. 15-011909-NA Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ. PER CURIAM.
Respondent-mother, A. Bruckner, appeals as of right the trial court's order terminating her parental rights to the minor child pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
The trial court also terminated the parental rights of the child's father, A. Walker, but he has not appealed that decision and is not a party to this appeal. --------
Respondent argues that the trial court erred in finding that the statutory grounds for termination were established by clear and convincing evidence. We disagree. "In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). We review for clear error a trial court's ruling that a statutory ground for termination has been proven by clear and convincing evidence. In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). "A 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.
The trial court found that grounds for termination were established under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), which authorize termination of parental rights 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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, 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.
The trial court did not clearly err in finding that termination of respondent's parental rights was justified under § 19b(3)(c)(i). Respondent made minimal progress with her treatment plan throughout the 20 months the child was in care. The trial court noted respondent's continued marijuana use, observing that she had missed 216 drug screens and had tested positive for marijuana in 29 of the 44 screens that she completed. The trial court also discussed that the child's removal was due in part to respondent's lack of supervision of the child and that respondent had not benefitted from various parenting programs. In addition, respondent's mental health continued to remain a barrier to reunification. She was not consistent with mental health services and, while petitioner had tried to obtain a case manager for her, she failed to take advantage of this service. The trial court also noted that respondent continued to exhibit paranoia throughout the case, such as by refusing to use public transportation. Moreover, respondent failed to maintain employment and her housing situation continued to be erratic. The trial court also discussed the problems with visitation, which had a negative effect on the child.
The trial court did not clearly err with respect to this ground for termination. One of the grounds for taking jurisdiction over the child was respondent's admission that she would be evicted and likely homeless. As of the date of the hearing, approximately 20 months later, respondent still had not yet shown that she had adequate housing. While she claimed to have been living in her present home since July 2016, she had not arranged for a home visit. Moreover, testimony indicated that her present home was not suitable for the child's placement because of incidents of domestic violence, which was also an initial reason for the child's removal from respondent's care. Respondent was also spending part of the time at the home of her mother, who had also been involved in the prior instances of domestic violence.
Respondent had not made significant progress with her initial parenting problems. During the adjudication, respondent pleaded no contest to other petition allegations, including her lack of supervision over the child. The caseworker testified about respondent's failure to benefit from parenting classes, which led to the termination of this service in March 2016. Respondent was then asked if she wanted to participate in a home-based parenting skills session with Mid-Michigan Community Action, but she did not want to work with the assigned worker at that time. Although respondent later agreed to work with the worker, she did not timely contact the worker and lost the ability to participate. Respondent later completed a Parenting Through Change program through Bay Arenac Behavioral Health, but she was unable to complete the in-home portion of the program. Other witnesses provided information concerning respondent's inappropriate behavior during visitations, as well as many missed visitations, which negatively affected the child to the extent that petitioner had to suspend visitation twice.
Most significantly, the trial court did not clearly err in finding that respondent's mental health issues continued to remain a barrier to reunification. As of the date of the termination hearing, respondent had been dropped from her original therapy program because of missed appointments. She then met with another therapist, but also stopped attending those counseling services. Respondent later told the caseworker that she intended to meet with another therapist, but never provided with any documentation showing that she had attended any sessions with this therapist. Although respondent had again requested mental health services shortly before the termination hearing, at the time of the hearing she had not yet attended any therapy sessions. Respondent also admitted that she had discontinued taking all her psychotropic medications, apparently against the advice of her physician. While respondent's caseworker and respondent's past case manager testified that respondent appeared calmer as a result, the trial court could reasonably find, and did find, that her decision to take matters into her own hands meant that her mental health issues continued to remain unresolved.
Considering the length of time in which respondent had an opportunity to participate in services, approximately 20 months, and her lack of progress over that period, the trial court did not clearly err in finding that the conditions that led to the adjudication were not reasonably likely to be rectified within a reasonable time. Thus, the trial court did not clearly err in finding that termination was justified under § 19b(3)(c)(i).
With respect to § 19b(3)(c)(ii), we agree that the trial court did rely on a number of the same circumstances that it discussed in relation to § 19b(3)(c)(i), such as lack of housing, inconsistencies in parenting, and respondent's anger. Although, however, the trial court discussed respondent's continued marijuana use and missed drug screens in its discussion of § 19b(3)(c)(i), these factors are more appropriately applied to § 19b(3)(c)(ii), because they were not conditions identified in the initial petition. Instead, respondent's substance abuse later became a concern when respondent was unable to stop using marijuana without a valid medical marijuana card. In addition, respondent's repeated missed visitations, which negatively affected the child to the point that respondent's visitations were twice suspended, also supports the trial court's reliance on § 19b(3)(c)(ii). Accordingly, the trial court did not clearly err in finding that termination was also warranted under § 19b(3)(c)(ii).
These same circumstances also support the trial court's reliance on §§ 19b(3)(g) and (j). After almost two years, respondent failed to make more than minimal progress with her parent- agency agreement. She continued to use marijuana, missed a large number of drug screens, failed to regularly participate in therapy, made little progress in rectifying her parenting deficiencies, and had not shown that her housing was appropriate. "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody," In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014), as is a parent's persistent failure to gain control over a substance-abuse problem, In re Conley, 216 Mich App 41, 44; 549 NW2d 353 (1996). "Similarly, a parent's failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." In re White, 303 Mich App at 710. Moreover, harm for purposes of § 19b(3)(j) includes both physical harm and emotional harm. In re Hudson, 294 Mich App at 268. Considering the testimony regarding the child's ongoing behavior and emotional problems, the trial court's finding that the child was reasonably likely to be harmed if returned to respondent's home is not clearly erroneous. The trial court did not clearly err in finding that grounds for terminating respondent's parental rights were also established under §§ 19b(3)(g) and (j).
Respondent also argues that the trial court erred in finding that termination of her parental rights was in the child's best interests. We again disagree.
"If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child's best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made." MCL 712A.19b(5). We review for clear error the trial court's determination whether termination of parental rights is in a child's best interests. In re Payne/Pumphrey/Fortson, 311 Mich App 49, 63; 874 NW2d 205 (2015).
Whether termination of parental rights is in a child's best interests is determined by a preponderance of the evidence. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013). Factors for a court to consider include "the child's bond to the parent, the parent's parenting ability, the child's need for permanency, stability, and finality, and the advantages of a foster home over the parent's home." In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012)(citations omitted). A court may also consider whether it is likely "that the child could be returned to her parents' home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012).
The trial court found that respondent failed to make progress with her treatment plan despite repeated opportunities to do so. The trial court also found that the child was doing well in foster care, that she was happy, that her mental health issues had stabilized, and that her foster parents wanted to adopt her, which would give the child the care, security, and protection the child needed. The trial court's findings are not clearly erroneous.
Testimony was presented that the child had developed significant behavioral and emotional issues due to respondent's chaotic conduct during visitations and because of disappointment from numerous missed visits. The child's therapist and foster-mother testified that the child's behavioral problems improved after visitations were suspended. The therapist also stated that during visits that respondent did attend, she struggled with providing structure and her parenting skills did not improve over time. According to the child's therapist, the child needed consistency, which respondent had not been able to provide, and the child would likely again regress and become more emotional and aggressive if respondent's parental rights were not terminated and visitation resumed. Conversely, the child was thriving in her current placement. The child's foster mother testified about her bond with the child and her willingness to adopt the child. The trial court did not clearly err in finding that termination of respondent's parental rights was in the child's best interests.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Deborah A. Servitto