Opinion
No. 344261
02-19-2019
In re WALLS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court Family Division
LC No. 00-112734-NA Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ. PER CURIAM.
Respondent appeals as of right the order terminating his parental rights to the minor children, ILW and IDW, under MCL 712.A19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that the child will be harmed if returned to parent). We affirm.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the prior version of the statute, a court could terminate parental rights if "[t]he parent, without regard to intent, fails to provide proper care or custody for the child," with no reasonable expectation that the parent would provide proper care and custody in a reasonable amount of time, given the child's age. See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quoting the prior version of MCL 712A.19b(3)(g)). Under the new version of the statute, termination is warranted where "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child. . . ." MCL 712A.19b(3)(g), as amended by 2018 PA 58. Consideration of the parent's financial ability to provide proper care or custody is the only major change to the statutory language; the text of the provision was not otherwise amended. --------
I. TERMINATION AT THE INITIAL DISPOSITIONAL HEARING
As an initial matter, respondent argues that petitioner's failure to make reasonable efforts to reunify respondent and the children constituted clear error, as no aggravating circumstances existed so as to allow petitioner to forgo its requirement to make reasonable efforts for reunification under MCL 712A.19a(2). Petitioner argues that MCL 722.638(3) allows petitioner to seek the termination of parental rights at the initial dispositional hearing (even if no aggravating circumstances exist) so long as petitioner "hold[s] a conference among the appropriate agency personnel to agree upon the course of action."
This Court, in In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013), addressed a similar situation in which the respondent argued that the "termination of her parental rights was premature because she should have been offered reunification services" before the initial dispositional hearing. This Court disagreed, stating:
Generally, reasonable efforts must be made to reunite the parent and children unless certain aggravating circumstances exist. See MCL 712A.19a(2). However, the petitioner "is not required to provide reunification services when termination of parental rights is the agency's goal." In re HRC, 286 Mich App 444, 463; 781 NW2d 105 (2009). Further, the petitioner can request termination in the initial petition. MCL 712A.19b(4); MCR 3.961(B)(6). Pursuant to MCR 3.977(E), termination is required at the initial disposition hearing and additional reunification efforts shall not be ordered if:
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l ), (m), or (n);
(4) termination of parental rights is in the child's best interests. [In re Moss, 301 Mich App at 90-91.]
Here, the original petition sought to terminate the parental rights of respondent and SW, the children's mother. Respondent, however, was dismissed from the original petition. After SW failed to comply with her case service plan, the trial court held a permanency planning hearing, at which time the court determined that reunification was no longer the goal, and changed SW's case service plan goal to adoption and termination of SW's parental rights. Petitioner then filed a supplemental petition seeking to terminate the parental rights of both SW and respondent. Thus, the combined adjudication, statutory bases, and best-interests hearing, where respondent's parental rights were terminated, served as the initial dispositional hearing with respect to respondent's parental rights. Further, because the supplemental petition indicated that petitioner's goal was adoption and the termination of respondent's parental rights—not reunification—petitioner was not required to show that it had made reasonable efforts to reunify respondent and the children before seeking the termination of respondent's parental rights. See In re HRC, 286 Mich App at 463. And aggravating circumstances are not required for petitioner to seek the termination of respondent's rights at the initial dispositional hearing. See In re Moss, 301 Mich App at 90-91, citing MCR 3.977(E).
II. STATUTORY GROUNDS
Respondent also argues that no statutory grounds existed to support the termination of his parental rights. We disagree.
"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). An appellate court must defer to a trial court's factual findings at a termination proceeding if those findings are not clearly erroneous. In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). "A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made." In re LaFrance Minors, 306 Mich App 713, 723; 858 NW2d 143 (2014). In applying the clear-error standard, " '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 Schadler, 315 Mich App 406, 408-409; 890 NW2d 676 (2016), quoting In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). "[O]nly one statutory ground need be proved to support the termination of a parent's parental rights." In re Gonzales/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015).
The trial court erred in holding that clear and convincing evidence existed to find that MCL 712A.19b(3)(c)(i) provided statutory grounds for the termination of respondent's parental rights. MCL 712A.19b(3)(c)(i) provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .
* * *
(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 . . .
(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.
Petitioner filed its original petition seeking the termination of the parental rights of respondent and SW; however, respondent was stricken from that original petition. A supplemental petition was later filed seeking the termination of respondent's parental rights. The trial court held an initial dispositional hearing—in the form of a combined adjudication, statutory bases, and best-interests hearing—at which time it determined that there were sufficient grounds to assume jurisdiction over respondent, that statutory grounds to terminate respondent's parental rights existed, and that the termination of respondent's parental rights was in the best interests of ILW and IDW. Because the 182-day requirement from MCL 712A.19b(3)(c)(i) had not been met, the trial court clearly erred in finding that sufficient statutory grounds existed to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i).
However, the trial court did not err in terminating respondent's parental rights under MCL 712A.19b(3)(g). At the time the trial court terminated respondent's parental rights, MCL 712A.19b(3)(g) provided:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .
* * *
(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.
Respondent is diagnosed with paranoid schizophrenia, and has been hospitalized numerous times since the original petition was filed because he consistently refuses to take his medication for his schizophrenia. This refusal leads to respondent becoming isolated and uncommunicative. For example, on one occasion, respondent had failed to take his medication and barricaded himself in his home—with ILW and IDW inside—for approximately four days. Respondent refused to allow anyone in the home, and police officers had to forcibly enter respondent's home, remove the children, and taser respondent for not complying with the officers' commands.
Respondent also failed to comply with various treatment programs to help him avoid schizophrenic episodes and delusions. Respondent was not required to participate in any treatment programs, as he was not under the trial court's jurisdiction until the combined adjudication, statutory bases, and best-interests hearing. However, respondent's refusal to take his medication, and his repeated hospitalizations that resulted from his noncompliance, shows that there is no reasonable likelihood that respondent could effectively provide proper care and custody for ILW and IDW. See MCL 712A.19b(3)(g).
This Court, in In re Moss, 301 Mich App at 81-82, held that terminating the respondent's parental rights was supported by clear and convincing evidence under MCL 712A.19b(3)(g) and (j) where the respondent had a long history of mental illness, refused to comply with her treatment, and was hospitalized after experiencing psychotic episodes and thoughts of harming her daughter. Similar circumstances exist here. The trial court concluded that respondent has "a long history of schizophrenia and antisocial personality disorder," that "he has not been complying with medication and treatment," and that when respondent is not taking his medication or involved in treatment for his schizophrenia, "there is a feeling . . . that he could be a danger to himself and other people." Thus, given the nature of respondent's mental illness and his history of noncompliance with his medication and treatment, the trial court did not err by finding that clear and convincing evidence existed to support the termination of respondent's parental rights under MCL 712A.19b(3)(g).
The trial court also did not err by terminating respondent's parental rights under MCL 712A.19b(3)(j), which provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .
* * *
(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's mental illness causes him to experience delusions and severe paranoia when he is not medicated, which can lead to instances where respondent is a threat to harming himself or others. One delusion caused respondent to become suicidal, in which he indicated that he would kill himself and the children because he believed no one could provide adequate care for them. Also, as mentioned above, the incident leading to petitioner's filing of the original petition involved respondent barricading himself in his home with ILW and IDW for about four days. This lead to police officers having to forcibly enter respondent's home, remove ILW and IDW from respondent's care, and taser respondent for failing to comply with their commands. Respondent's history of noncompliance with his mental health treatment, and the danger he poses to the children when he is not medicated, demonstrate that there is a reasonable likelihood that ILW and IDW would be harmed if returned to respondent's care. See In re Moss, 301 Mich App at 82. Thus, the trial court did not err by finding that clear and convincing evidence existed to support the termination of respondent's parental rights under MCL 712A.19b(3)(j).
In summary, the trial court did not clearly err when it found statutory grounds for termination under MCL 712A.19b(3)(g) and (j). See In re Gonzales/Martinez, 310 Mich App at 431.
III. BEST INTERESTS
Respondent argues that the trial court's decision to terminate his parental rights was clearly erroneous, and was not in the best interests of ILW and IDW. We disagree.
Termination of parental rights must be ordered if the trial court finds that a statutory basis 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 . . . ." In re Schadler, 315 Mich App at 408. This Court "review[s] for clear error the trial court's determination regarding the children's best interests." In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014).
The focus at the best-interest stage is on the child, not the parent. In re Moss, 301 Mich App at 87. The trial court should weigh all the evidence available to it in determining the child's best interests, In re White, 303 Mich App at 713, and may consider such factors as "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 Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). The trial court may also consider "the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 714.
The trial court did not err by finding that the termination of respondent's parental rights was in the best interests of ILW and IDW. At the best-interests stage of the hearing, the trial court stated that, "at their young age, [ILW and IDW] are in need of stability[,] . . . safety, and consistency." The trial court pointed out that ILW and IDW had been in foster care for approximately 20 months, and were "thriving." The trial court also determined that, while respondent can provide adequate care for ILW and IDW when properly medicated, his history of noncompliance with his medication, and the likelihood that he will refuse treatment and medication in the future, "certainly could affect [ILW and IDW]." The trial court further considered having AS, respondent's sister, adopt the children, stating that "any family member [that] wants to step forward . . . [has] every right to do so." The trial court determined that the children's placement with AS as opposed to their current foster care placement was "certainly an argument that . . .[should] be considered," but ultimately concluded that the children's placement was not a decision for the trial court to make. Nevertheless, the evidence admitted at the best-interests hearing demonstrated concerns about AS's ability to care for respondent, ILW, and IDW at the same time. In fact, AS was previously given an opportunity to become a licensed foster parent for the children, but she failed to complete the necessary licensing procedures. Thus, the trial court's findings properly supported the overall determination that the termination of respondent's parental rights was in the best interests of ILW and IDW. See id. at 713; In re Olive/Metts Minors, 297 Mich App at 41-42.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ James Robert Redford