Opinion
No. 341718
08-21-2018
In re T. M. WILLIAMS, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 15-520807-NA Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ. PER CURIAM.
Respondent-mother appeals the trial court's order terminating her parental rights to the minor child, TW, pursuant to MCL 712A.19b(3)(g) and (j). Because we conclude that there are no errors warranting relief, we affirm.
I. FACTS AND PROCEEDINGS
Respondent has given birth to four children. Although each of these children were, at some point, listed in the various petitions, only the parental rights to respondent's oldest daughter, TW, are at issue in this appeal.
Respondent's history with Child Protective Services (CPS) dates back to 2012, when respondent's oldest child was born and tested positive for marijuana. CPS was again involved with the family in 2014 when another child was similarly exposed to drugs in utero. After the birth of both children, respondent was offered and participated in substance abuse services. It was not until 2015, however, that the children were removed from respondent's care.
In September 2015, respondent was living with her children and the father of her two youngest children. On the afternoon of September 16, 2015, respondent gave then 2½-year-old TW a bath. Initially, respondent reported to CPS and hospital personnel that she placed TW in the bathtub and then went into the kitchen to make a bottle for another child. At a prior hearing, however, respondent testified that she bathed TW, let the water drain from the tub, and then left the child in the empty bathtub for a brief moment while she went to retrieve a towel. Under either scenario, respondent admits to leaving her child alone in the bathtub. According to respondent's hearing testimony, during her brief absence, respondent heard TW scream. When respondent returned to the bathroom, she found TW sitting in the tub with steaming hot water running. Apparently, when TW saw respondent enter the bathroom, the child stood up and reached for her. Before respondent could get to her, the child allegedly fell back into the bathtub.
Respondent further testified that, at that point, she grabbed TW out of the tub and wrapped her in a towel. Respondent claimed that during the brief moments that she left the toddler unattended, TW was able to turn on the scalding hot water. After respondent retrieved the child from the tub, she noticed the child's skin was bubbling. At that point, respondent diapered and dressed the child and took her to an urgent care facility. From there, the child was transferred to Children's Hospital of Michigan where she was treated for second-degree burns over 13% of her body. The child sustained burns to her right and left buttock, genital area, right and left leg, and right foot. She was discharged from the hospital approximately three weeks later.
Based on the initial investigation, CPS concluded that the burn pattern on TW's body was inconsistent with the explanation given by respondent. At a September 18, 2015 family team meeting, a safety plan was devised that resulted in two of respondent's children being placed with their biological fathers. Because there was no paternity established and no family members willing to care for TW, upon her discharge from the hospital, petitioner placed TW in a non-relative licensed foster home. A mandatory petition seeking termination of respondent's parental rights to her children was filed in September 2015.
Respondent's fourth child had yet to be born.
At a termination hearing that began in January 2016, TW's pediatric surgeon testified that he treated TW during her admission to Children's Hospital. In his opinion, the burn patterns indicated that TW experienced immersion burns. The doctor explained that the bottom of TW's right foot was burned, which indicated that the foot was suspended in the water. He also noted that TW did not have any splash mark burns on her body, which would imply that she did not fall into the water. The doctor concluded that it looked like TW was "placed into an existing quantity of [hot] water." He further explained, when referencing a picture of TW's burns, "you can see that if you've bent the child's leg up you could create one level of water where the patient's buttocks and lower extremity went in at the same time and stopped at the same level and that's what gave us the inclination of [sic] feeling that it wasn't consistent with the splash burn." The doctor disagreed that TW's burns were consistent with a child sitting in the water and then being dropped back in. He rejected this hypothetical because "[i]f it was a drop back into the water you'd expect splashing; you'd expect hands to go down to protect the fall, and you'd expect hand involvement." In this case, TW did not have any upper torso burns.
At the conclusion of the hearing, the trial court found that the evidence was sufficient to exercise jurisdiction over respondent and her three children, but there was not clear and convincing evidence to terminate respondent's parental rights to TW. Consequently, the court denied the request to terminate respondent's parental rights and ordered respondent to participate in a case-service plan.
By April 2017, TW had been in care for more than 18 months and respondent still had not made sufficient progress with her treatment plan. Consequently, the court ordered the filing of a permanent custody petition relative to TW only. Following a hearing that concluded in November 2017, the court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(g) and (j). Thereafter, this appeal ensued.
II. ANALYSIS
Respondent argues that the trial court erred when it found 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 that at least one of the statutory grounds for termination has been established by clear and convincing evidence. In re Trejo, 462 Mich 341, 355; 612 NW2d 407 (2000). This Court reviews the trial court's findings under the clearly erroneous standard. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989) (citation omitted).
A. STATUTORY GROUNDS
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(g) and (j), which permit termination of parental rights when the following conditions are satisfied:
(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.After reviewing the record, we conclude that the trial court did not clearly err when it found that these statutory grounds for termination were established by clear and convincing evidence.
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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.
We note that MCL 712A.19b(3)(g) was amended after the proceedings, on June 12, 2018, to read: "(g) The parent, although, in the court's discretion, financially able to do so, 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."
TW came into care after suffering second-degree burns over 13% of her body. Respondent contends that there was no finding that she caused the burns. However, the evidence presented at the first termination hearing demonstrated that, at worst, respondent intentionally placed TW in scalding hot bathwater or, at best, she was grossly negligent in leaving her child unattended in a bathtub. After TW was removed from respondent's care, respondent was offered a multitude of services designed to improve her parenting skills and achieve reunification. At the time of the termination hearing, TW had been in care for more than two years and there was no evidence that respondent had meaningfully participated in and benefited from the services offered.
Child protection proceedings are treated as continuing proceedings, and evidence admitted at one hearing may be considered at all subsequent hearings. In re LaFlure, 48 Mich App 377, 391; 210 NW2d 482 (1973). --------
Respondent's treatment plan required her to participate in parenting time, parenting classes, individual therapy, a psychological evaluation, substance abuse assessment and treatment, and random drug screens. She was also ordered to obtain and maintain suitable housing and a legal source of income. Respondent was provided timely referrals for these services, but she was terminated early from nearly every service for lack of participation. This necessitated that petitioner re-refer respondent multiple times. Indeed, respondent was re-referred to parenting classes six times, and to individual therapy and substance abuse treatment three times. At the time of the termination hearing, and after multiple re-referrals, respondent had only completed a psychological evaluation, a parenting class, and she attended some individual therapy.
Further, respondent did not submit to any of the 45 requested random drug screens and, when she was tested before scheduled parenting time on nine occasions, all nine tests came back positive for marijuana. Respondent's substance abuse treatment was included as a component of her individual therapy, which was provided on an in-home basis. However, respondent did not consistently attend therapy, and thus did not consistently participate in substance abuse treatment. At the termination hearing, there was no evidence that respondent had sufficiently addressed and overcome her long-standing substance abuse issues and her underlying issues with emotional instability.
Despite her eventual completion of a parenting class, respondent's parenting skills had not improved. This is evidenced by the fact that she failed to consistently attend parenting time. Respondent testified that she missed visits with her children because of housing issues. When asked to elaborate, respondent explained that because she did not have housing, she did not get the rest she needed and, therefore, she was too tired to properly care for her children. She also claimed that she missed visits because of her poor hygiene related to her homelessness. Respondent's excuses demonstrate that she lacked the parenting skills and judgment to appreciate that spending time with her child was paramount, and that some fatigue and the inability to shower were comparatively insignificant. At the time of the termination hearing, respondent did not have suitable housing. Indeed, she was homeless and living in a shelter. Respondent candidly admitted that if TW were returned to her care, she would not be able to provide for the child's needs because of her lack of housing and income.
Respondent's failure to substantially comply with the treatment plan evidenced that she would not be able to provide TW with proper care and custody. "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). 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." Id. at 711. The evidence further suggested that respondent would not be in a position to properly care for TW within a reasonable time considering TW's age. Respondent never demonstrated the commitment to her child necessary to warrant reunification. Indeed, at the time of termination, she blamed the caseworker for her failure to comply with the treatment plan. This lack of insight and motivation suggests that respondent, in the future, will not take the measures necessary to demonstrate that she can properly parent her child.
After a review of the lower court record, we conclude that the trial court did not clearly err when it found clear and convincing evidence to terminate respondent's parental rights to TW pursuant to MCL 712A.19b(3)(g) and (j). The evidence supported a finding that, despite a multitude of services over a two-year period, respondent had not successfully overcome the barriers to reunification. As a result of this failure, respondent could not demonstrate that she was in a position to properly parent her child or that she would be able to do so within a reasonable time. Moreover, these unresolved issues would pose a risk of harm to the child if she were returned to respondent's care.
B. BEST INTERESTS
Further, the trial court did not clearly err when it found that termination of respondent's parental rights was in TW's best interests. "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). The court may consider several factors when deciding if termination of parental rights is in a child's best interests, including 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). The court may also consider psychological evaluations, the child's age, and a parent's history. In re Jones, 286 Mich App 126, 131; 777 NW2d 728 (2009).
At the time of the termination hearing, TW had been in care for more than two years. The lack of stability was taking its toll on the child. Recently, when told that she would be visiting respondent, the child would break down crying and have tantrums. After visits, the child exhibited behavioral issues. During the time the child was in care, respondent was provided a multitude of services that she either failed to participate in or failed to benefit from. In addition to failing to address her parenting skills and emotional instability, respondent had not obtained suitable housing and an income. Respondent was simply unable to properly parent her child and provide for the child's needs.
Respondent contends that the bond between her and TW weighed in favor of preserving her parental rights. Although a bond existed between respondent and the child, this bond cannot be elevated above the child's need for safety and stability. Furthermore, respondent had not consistently attended parenting time with her child. Respondent clearly failed to appreciate the impact her absence would have on a parent-child bond and on her child's future well-being.
Moreover, the child was doing well in her foster home. She had the benefit of being placed with the same foster parents during the entire lower court proceedings. These foster parents were instrumental in seeing to the child's medical needs after she was discharged from the hospital. Clearly, the foster parents were meeting all of this child's needs. Further, because they had expressed the desire to adopt the child, they will be uniquely qualified to attend to any medical needs that may arise in the future related to the child's burn recovery. When balancing the best-interest factors, a court may consider the advantages of a foster home over the parent's home and the possibility of adoption. In re Olive/Metts, 297 Mich App at 41-42. It is clear that the child was placed in a stable home where she was progressing, and the foster parents had indicated a willingness to provide permanency for the child in their care.
After having been in care for more than two years, the child was entitled to stability, consistency, and finality in order to facilitate her continued growth and development. Accordingly, the trial court did not clearly err when it held that termination of respondent's parental rights was in TW's best interests.
Affirmed.
/s/ Thomas C. Cameron
/s/ Amy Ronayne Krause
/s/ Jonathan Tukel