Opinion
No. 350821
05-28-2020
In re S. WATTS, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court Family Division
LC No. 17-053251-NA Before: TUKEL, P.J., and MARKEY and GADOLA, JJ. PER CURIAM.
Respondent-father appeals as of right the trial court's termination of his parental rights to the minor child, SW, under MCL 712A.19b(3)(a)(ii) (desertion for a period of 91 or more days), (c)(i) (failure to rectify conditions of adjudication), and (g) (failure to provide proper care and custody). We affirm.
Respondent-mother voluntarily released her parental rights to SW. Mother declined to appeal and, thus, her parental rights are not at issue.
I. FACTS
This case arose from allegations that SW's mother did not provide proper care and custody for her or mother's child from another relationship. In November 2017, petitioner, Department of Health and Human Services (DHHS), submitted a petition to the trial court to remove the minor children from mother's care. Respondent was incarcerated in Florida when DHHS submitted the petition to remove the children from their mother's care.
DHHS alleged that mother attempted suicide and was in a relationship involving domestic violence. Regarding respondent, DHHS alleged that respondent was incarcerated at that time and that respondent was previously involved in a Children's Protective Services (CPS) case in 2012 on the basis of his substance abuse and mother's mental health concerns. In April 2018, respondent offered a plea of admission to the allegations against him in the petition, and the trial court accepted respondent's plea. The trial court found that there was a factual basis to support the plea and that there were statutory grounds to exercise jurisdiction.
The trial court subsequently entered an order terminating respondent's parental rights to SW. The trial court found that respondent failed to contact SW or participate in this case after March 2019, failed to address and rectify his substance abuse and lack of relationship with SW, and failed to provide SW with proper care and custody, in part on the basis of his incarceration at the time of the termination hearing. Therefore, the trial court determined that DHHS proved a statutory basis for termination pursuant to MCL 712A.19b(3)(a)(ii), (c)(i), and (g) by clear and convincing evidence. The trial court also found that termination of respondent's parental rights was in the best interests of SW on the basis of her need for permanency, lack of bond with respondent, and the advantages of her relative placement with her maternal grandmother in comparison to respondent's inability to provide a home while he was incarcerated.
II. ANALYSIS
A. CONSTITUTIONAL RIGHTS
Respondent argues on appeal that the trial court erred by failing to return SW to his care and custody when he complied with the parent-agency treatment plan and demonstrated that he was a fit parent. We disagree.
As an initial matter, to the extent that respondent argues that he had a constitutional right to parent SW and to the return of SW to his care and custody because he was a fit parent, this argument is unpreserved because respondent did not argue before the trial court that he had a constitutional right to parent SW, that the trial court failed to consider this constitutional right, or that the trial court erroneously exercised jurisdiction over SW. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014).
Generally, we review de novo the question of constitutional law whether the termination proceedings complied with a parent's right to due process. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009). Additionally, we review de novo the question of law whether a trial court had subject-matter jurisdiction. See In re Wayne Co Treasurer, 265 Mich App 285, 290; 698 NW2d 879 (2005). We review the trial court's decision to exercise jurisdiction "for clear error in light of the court's findings of fact." In re BZ, 264 Mich App 286, 295; 690 NW2d 505 (2004). However, our review of unpreserved claims of error is "limited to plain error affecting substantial rights." In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." In re VanDalen, 293 Mich App at 135. "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.
We review the trial court's findings and factual determinations for clear error. MCR 3.977(K); see also In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich 73, 90; 763 NW2d 587 (2009). Finally, we must give regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
The parent of a child has a fundamental liberty interest in the care, custody, and management of the child. See Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982); In re Beck, 488 Mich 6, 11; 793 NW2d 562 (2010). There is " 'a presumption that fit parents act in the best interest of their children' " under the United States Constitution. In re Sanders, 495 Mich 394, 410; 852 NW2d 524 (2014) (citation omitted). However, "[a] parent's right to control the custody and care of her children is not absolute, as the state has a legitimate interest in protecting 'the moral, emotional, mental, and physical welfare of the minor' and in some circumstances 'neglectful parents may be separated from their children.' " Id. at 409-410 (citation omitted). The rights of the parent and child come into conflict when the parent is unfit to parent the child. In re Clausen, 442 Mich 648, 687; 502 NW2d 649 (1993). The state may interfere with the parent and child's "mutual due process liberty interests" by demonstrating parental unfitness in a judicial proceeding. Id. at 687 n 46. The state may constitutionally terminate a parent's parental rights if it affords the parent fundamentally fair procedures, which includes proof by clear and convincing evidence that termination is warranted. See Santosky, 455 US at 753-754; see also In re Rood, 483 Mich at 92-93.
Petitioner, following an investigation, may petition a family court to take jurisdiction over a child. In re Ferranti, 504 Mich 1, 15; 934 NW2d 610 (2019), citing MCR 3.961(A). The petition must contain essential facts that, if proven, would allow the family court to assume and exercise jurisdiction over the child. See MCR 3.961(B)(3); MCL 712A.2(b); In re Ferranti, 504 Mich at 15. If a petition is authorized, the trial court holds an adjudication during which the trial court determines "whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights." In re Ferranti, 504 Mich at 15.
A family court can take and exercise jurisdiction if a respondent makes a plea of admission or no contest to the allegations in the petition or if the DHHS proves the allegations at a trial. MCR 3.971(A); see also In re Ferranti, 504 Mich at 15. "The court shall not accept a plea of admission or of no contest without establishing support for a finding that one or more of the statutory grounds alleged in the petition are true, preferably by questioning the respondent unless the offer is to plead no contest." MCR 3.971(C)(2), now found in MCR 3.971(D)(2), amended effective June 12, 2019. "The adjudication divests the parent of her constitutional right to parent her child and gives the state that authority instead." In re Ferranti, 504 Mich at 16. Although a parent has "a fundamental right to direct the care, custody, and control" of his or her child, the parent effectively waives that fundamental right to parent the child when the parent offers a voluntary and knowing plea to the allegations in the petition. Id. at 21; see also MCR 3.971(D)(1).
Here, respondent had a constitutional right to parent SW. See In re Ferranti, 504 Mich at 21; In re Beck, 488 Mich at 11. The state became involved in this case as the result of respondent's incarceration and the failure of SW's mother to provide proper care and custody for SW. Because SW did not have an appropriate or fit place to live with either respondent or her mother, the state had a legitimate interest in protecting the moral, emotional, mental, and physical welfare of SW. See In re Sanders, 495 Mich at 409-410. The circumstances that gave rise to DHHS submitting a petition to the trial court supported the application of MCL 712A.2(b)(2), and the trial court did not plainly err by authorizing the petition. See MCR 3.962(B)(3); In re Ferranti, 504 Mich at 15.
Additionally, respondent voluntarily and knowingly offered a plea of admission to the allegations in the petition. The trial court found that respondent's plea was appropriate and accepted the plea. The trial court determined, by a preponderance of the evidence, that there was a factual basis for the plea and that there were statutory grounds to exercise jurisdiction. Because respondent voluntarily and knowingly offered a plea of admission to the allegations in the petition, he waived his fundamental and constitutional right to parent SW. See In re Ferranti, 504 Mich at 16.
Furthermore, respondent did not establish that the trial court's exercise of jurisdiction over SW affected his substantial rights. Absent respondent's plea of admission and waiver of his constitutional right to parent SW, there was sufficient evidence that respondent was absent from SW's life and home environment because of his criminality. Because respondent was incarcerated in Florida, he did not provide for SW, and he left her in an unfit environment because SW's mother was not able to provide proper care and custody for her. The circumstances that gave rise to DHHS submitting a petition to the trial court supported the trial court's exercise of jurisdiction under either MCL 712A.2(b)(1) or MCL 712A.2(b)(2). See MCR 3.971(A); In re Ferranti, 504 Mich at 15. Therefore, respondent did not establish that, absent his plea of admission, the trial court would not have exercised jurisdiction over SW or that his constitutional right to parent SW would not have been divested through the adjudication. See In re Ferranti, 504 Mich at 16; In re Utrera, 281 Mich App at 9.
Regarding the return of SW to respondent's home, the trial court did not clearly err in ultimately finding that respondent's home created a substantial risk of harm to her. During a dispositional review hearing a trial court must evaluate a parent's progress in complying with the case service plan or parent-agency treatment plan, whether a parent made progress toward alleviating the conditions that caused the child to be removed from the home, and whether the child would be harmed if he or she was returned to the parent. MCR 3.975(F); see also MCL 712A.18f(4) (providing that a trial court shall consider the case service plan and shall state whether the DHHS made reasonable efforts to rectify the conditions that caused the child's removal from his or her home before entering an order of disposition). Following a dispositional review hearing, a trial court may order the return of a child to the parent's home, change the placement of the child, or continue the previous dispositional order, among other orders. MCR 3.975(G).
During a permanency planning hearing, a trial court must evaluate whether the DHHS made reasonable efforts to finalize a permanency plan and whether the child may be returned to his or her parent. MCR 3.976(A); see also MCL 712A.19a(3), (4) (providing that the trial court must determine whether progress was made toward returning the child to the home of his or her parent). Additionally, MCR 3.976(E) provides, in relevant part:
(2) Determining Whether to Return Child Home. At the conclusion of a permanency planning hearing, the court must order the child returned home unless it determines that the return would cause a substantial risk of harm to the life, the physical health, or the mental well-being of the child. Failure to substantially
comply with the case service plan is evidence that the return of the child to the parent may cause a substantial risk of harm to the child's life, physical health, or mental well-being. In addition, the court shall consider any condition or circumstance of the child that may be evidence that a return to the parent would cause a substantial risk of harm to the child's life, physical health, or mental well-being.
In this case, although the foster-care supervisor testified during the October 2018 dispositional review hearing that respondent made substantial progress in complying with the parent-agency treatment plan and that he displayed appropriate parenting skills during visitations, SW expressed resistance and anxiety when interacting with respondent. SW's anxiety and lack of bond with respondent was one of the barriers to reunification. Additionally, contrary to respondent's argument on appeal, the foster-care supervisor did not testify that respondent was a fit parent. Rather, the foster-care supervisor testified that returning SW to respondent's home at that time would be detrimental to SW because of her anxiety toward respondent. Because SW continued to experience anxiety regarding her time with respondent and because the services were not successful in alleviating the conditions that caused the child's removal, the trial court did not clearly err by finding that there was not sufficient progress made to support returning SW to respondent's care after the dispositional hearing. See In re Trejo, 462 Mich at 356.
Contrary to respondent's argument on appeal, the trial court entered a dual order placing SW with respondent and DHHS after the November 2018 permanency planning hearing. The trial court also ordered that DHHS had discretion to begin services for reunification in late January 2019. Moreover, although respondent had employment and appropriate housing, had arranged daycare for SW, and identified a school for her to attend at the time of the November 2018 hearing, SW's lack of relationship with respondent and her anxiety regarding placement with respondent were evidence that an immediate return of SW to respondent's sole care and custody would cause a substantial risk of harm to the her mental well-being. See MCR 3.976(E)(2). Because these circumstances supported that the immediate return of SW to respondent's home would cause her a substantial risk of harm, the trial court did not clearly err in finding that a dual order was necessary to prevent a substantial risk of harm to SW's life, physical health, or mental well-being while facilitating the return of her to respondent's home. See In re Trejo, 462 Mich at 356.
B. STATUTORY GROUNDS
Respondent next argues that the trial court clearly erred in finding clear and convincing evidence to support the statutory grounds for termination. We disagree.
Respondent also appears to argue that DHHS failed to make reasonable efforts to reunify the family. However, respondent did not raise this argument as a separate issue in his statements of questions presented. We deem this argument abandoned on appeal. See MCR 7.212(C)(5); Caldwell v Chapman, 240 Mich App 124, 132-133; 610 NW2d 264 (2000). Nevertheless, we conclude that DHHS offered reasonable services, including referrals for substance abuse treatment programs and family counseling sessions. We also conclude that the trial court did not clearly err by determining that DHHS made reasonable efforts to reunify the family and that respondent failed to demonstrate benefit from these efforts and services. See In re Hicks/Brown, 500 Mich 79, 90; 893 NW2d 637 (2017).
We review for clear error the trial court's ultimate determinations on the statutory grounds for termination. In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). "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). " '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.' " Id., quoting MCL 712A.19b(5).
Termination is proper under MCL 712A.19b(3)(a)(ii) when a child's parent deserted the child for a period of 91 or more days and did not seek custody of the child during that period. See In re Laster, 303 Mich App 485, 492; 845 NW2d 540 (2013).
The record showed that respondent stopped participating in parenting-time visitations with SW in March 2019. Additionally, respondent attended one family counseling session with SW in March 2019 and did not contact her after that counseling session. Respondent also failed to communicate with DHHS and the caseworker after those visits with SW. Respondent did not attend the May 2019 review hearing or participate in any services from March 2019 to the time of the termination hearing in August 2019. However, although incarcerated, respondent attended the termination hearing, but had not notified the caseworker or DHHS of his incarceration. There was no evidence presented that respondent was unable to contact the caseworker or DHHS as a result of his incarceration. Therefore, the trial court did not clearly err in finding that respondent deserted SW for a period of 91 or more days and that he failed to seek custody of her during that period. See In re Laster, 303 Mich App at 492.
Because we conclude that the trial court did not clearly err by determining that one statutory ground for termination existed, we need not consider whether the other grounds cited by the trial court also supported termination of respondent's parental rights. In re Foster, 285 Mich App 630, 633; 776 NW2d 415 (2009).
C. BEST INTERESTS
Finally, respondent argues that the trial court clearly erred by determining that termination of respondent's parental rights was in SW's best interests. We disagree.
"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; see also MCL 712A.19b(5); MCR 3.977(E)(4). "[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). We review for clear error a trial court's determinations regarding the child's best interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012); see also MCR 3.977(K).
"[A] trial court should weigh all the evidence available to determine the children's best interests." In re White, 303 Mich App at 713. The focus of the best-interest analysis is on the child's interests, rather than the parent's best interests. In re Moss, 301 Mich App at 88. The trial court determines each child's best interests individually and, in doing so, "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 advantages of a foster home over the parent's home." In re 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, the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App at 714. If a child is placed with a relative at the time of the termination hearing, the trial court must consider whether termination is appropriate in light of the child's placement with a relative. In re Olive/Metts, 297 Mich App at 43.
Here, the evidence and testimony presented at the termination hearing supported the trial court's conclusion that termination of respondent's parental rights was in the best interests of SW. The record supported that SW continued to express anxiety about spending time with respondent and the idea of returning to his care and home, despite participating in therapy to address her anxiety. Further, after March 2019, respondent did not attend parenting-time visitations or see SW, and it became apparent that respondent had slipped back into substance abuse. The evidence and testimony supported that there was no bond between SW and respondent. Regarding respondent's parenting ability, respondent generally demonstrated appropriate parenting skills during parenting-time visitations. However, respondent attended one family counseling session, during which he was under the influence of substances, focused on himself and his issues in this case, and did not acknowledge SW. Additionally, after the parenting-time visitation in March 2019, respondent stopped attending parenting-time visitations and ceased participating in this case. Therefore, respondent lacked the necessary parenting abilities and did not have a strong history of attending visitations by the time of the termination hearing.
Further, the record supported that SW needed permanency, stability, and finality. SW was seven years old at the time of the termination hearing and had been involved in several CPS cases and interventions since she was born. Additionally, when SW started to become more comfortable with respondent, respondent tested positive for drugs and became less involved in the case before he ultimately ceased participating and contacting SW. Respondent's substance use, failure to attend parenting-time visitations, and failure to attend family counseling with SW demonstrated that respondent did not comply with or benefit from the case service plan.
Finally, the trial court considered SW's relative placement with her maternal grandmother and determined that termination was nonetheless appropriate in this case. SW had previously been placed in a guardianship with her maternal grandmother, and her maternal grandmother provided a stable and supportive home environment for her throughout this case. SW's maternal grandmother was willing and eager to adopt her, in part to give her emotional stability and a sense of finality regarding her home. In contrast, SW expressed anxiety about being in respondent's care, and respondent was not able to provide her with a home at the time of the termination hearing on the basis of his incarceration. We conclude that the trial court appropriately considered the best-interest factors, and the trial court did not clearly err by determining that termination of respondent's parental rights was in the best interests of SW. See In re Olive/Metts, 297 Mich App at 41-42.
Affirmed.
/s/ Jonathan Tukel
/s/ Jane E. Markey
/s/ Michael F. Gadola