Opinion
No. 344247
01-22-2019
In re WINDFIELD/NICHOL, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court Family Division
LC Nos. 2016-000286-NA; 2016-000287-NA; 2016-000288-NA; 2016-000289-NA Before: GLEICHER, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.
Respondent appeals as of right the trial court's order terminating her parental rights to the minor children, SW, TW, AW, and DN. Respondent's rights were terminated under MCL 712A.19b(3)(b)(i) (parent caused sexual abuse of the child), MCL 712A.19b(3)(b)(ii) (parent failed to prevent abuse), MCL 712A.19b(3)(g) (parent failed to provide proper care and custody), and MCL 712A.19b(3)(j) (reasonable likelihood that the children will be harmed if returned to the parent) after SW was sexually abused by respondent's then fiancé, Steven Nichol, who was previously convicted of sexually abusing a minor. We affirm.
After respondent's rights were terminated, MCL 712A.19b(3)(g) was amended, effective June 12, 2018. See 2018 PA 58. Under the version of the statute applicable here, the court may terminate a parent's rights to a child if the parent "without regard to intent" fails to provide proper care or custody for the child. MCL 712A.19b(3)(g), as amended by 1990 PA 314. Under the new, current version of the statute, the court may terminate a parent's rights to a child if the parent "although, in the court's discretion, financially able to do so," fails to provide proper care or custody. MCL 712A.19b(3)(g), as amended by 2018 PA 58.
Respondent pleaded no contest to the statutory grounds for both adjudication/jurisdiction and termination, and does not contest statutory grounds on appeal. Respondent only argues on appeal that the trial court erred by finding that termination of her parental rights was in the best interests of the children. We disagree.
After statutory grounds for termination have been established under MCL 712A.19b(3), a court may terminate parental rights if it "finds by a preponderance of the evidence that termination is in the best interests of the children." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). "This Court reviews for clear error the trial court's ruling that termination is in the children's best interests." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). "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 Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
The best-interest analysis focuses on the child rather than the parent. In re Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016). In making a best-interest determination, the trial court is to consider "the whole record," which includes evidence introduced by any party. In re Medina, 317 Mich App 219, 237; 894 NW2d 653 (2016). The trial court should weigh all of the available evidence and consider a wide variety of factors such 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). Also relevant to the trial court's decision is evidence that the child is not safe with the parent. In re VanDalen, 293 Mich App 120, 141; 809 NW2d 412 (2011).
Regarding SW, TW, and AW, the facts presented at the best-interest hearing all weigh in favor of terminating respondent's parental rights. Respondent has repeatedly placed her own need for companionship and relationship with her sibling above the children's safety. In the 2011 divorce between respondent and Timothy Windfield—the father of SW, TW, and AW—sole physical and legal custody of the three children was awarded to Windfield. Windfield testified that between 2011 and 2014, respondent did not visit the children. Instead, respondent began a relationship with Nichol in 2011. Respondent acknowledged that not long after getting together, Nichol informed her that (1) he was convicted of criminal sexual conduct involving a minor child, (2) he had been sexually assaulting the child for six years prior to her being 13 and his conviction, and (3) he went to prison for this crime.
Despite her relationship with a convicted sexual predator, respondent successfully moved for parenting time in 2014 and was awarded visits with SW, TW, and AW every other weekend. Respondent failed to articulate any concern with Nichol being around the children because it was her understanding that he had been through counseling to help with his past, yet she was unaware of the details of that counseling. Respondent testified that she had a plan to restrict Nichol's time alone with SW, TW, and AW, by having herself and another adult around, but she did not have a plan for nighttime. In addition, a friend of Nichol, Terry Maxwell, who is a convicted felon that Nichol met in prison, also lived with respondent for a period of time while respondent was exercising her parenting time. Ultimately, respondent was not always present to watch the children when Maxwell and Nichol were around. Respondent stated that sometimes Maxwell would still be up with Nichol and the children, but respondent would eventually go to sleep not knowing if the children were alone with Nichol.
Notwithstanding her alleged plan to prevent Nichol from being alone with the children, respondent failed to protect SW, TW, and AW from Nichol because Nichol sexually abused SW. After SW reported in August 2016 that Nichol sexually assaulted her between December 31, 2015 and January 2, 2016, respondent did not believe SW. Respondent told Detective Sergeant Martin Morfino of the Macomb County Sheriff's Department on September 13, 2016, that she did not believe SW. Respondent indicated that there was no way Nichol could have assaulted SW because respondent was awake on the night in question. Detective Morfino described respondent's demeanor during the interview as lackadaisical, lethargic, and unconcerned about the situation. Again on September 1, 2017, respondent told Dr. Beckley that she did not believe SW's allegation against Nichol. Dr. Beckley's report conveyed that he saw no benefit to respondent being involved with the children that would even remotely support their best interests, and he recommended that they be exposed to respondent as little as possible given that they have a very psychologically unsympathetic mother. However, at the best-interest hearing in April 2018, Respondent testified—unconvincingly, according to the trial court—that she now believes SW since Nichol was convicted of sexually assaulting SW in March 2018.
Dr. Ross A. Beckley completed an evaluation regarding respondent's visitation with SW, TW, and AW after TW's psychologist recommended that TW be evaluated by a family therapist about having contact with his mother.
Respondent also exposed the children to another convicted sexual offender: respondent's brother, David Epstein, who had previously been convicted of sexually abusing respondent for many years. Respondent testified that she only allowed her brother to have contact with the children because he is family.
In addition to the fact that respondent clearly exposed the children to an unsafe environment by allowing them to have contact with two sexual predators that ultimately led to the sexual assault of SW, respondent also failed to provide SW, TW, and AW with any substantial parenting. Because of the children's young ages and SW's and TW's health conditions, the children have a strong need for stability, permanence, and finality. However, respondent has not successfully provided that stability. Multiple people lived with respondent during the time that she had parenting time with SW, TW, and AW from 2014 to 2016, including two convicted felons, Nichol and Maxwell. Respondent refused to leave a night light on when SW, TW, and AW slept, even though all three children needed a light on at night. Respondent told Windfield that the children were being babies about the dark and needed to grow up.
Also, respondent has not been to a doctor's appointment with SW, TW, or AW since she divorced Windfield in 2011, and she admitted that she does not know the name of the children's pediatrician. Respondent failed to give SW and TW their necessary medication during her parenting time, instead telling Windfield that the children do not need their medication. Windfield testified that both SW and TW are autistic and cognitively delayed and need their medication in order to be calm and focused, but they would return home following respondent's parenting time with full pill bottles. Respondent has not attended SW's, TW's, or AW's school events or parent-teacher conferences and does not know the names of their teachers. Respondent also failed to properly dress SW and TW during her parenting time. SW and TW wear size 10 or 12 but would return home to Windfield wearing size 5T clothes, short shorts, and small shirts that exposed their waist and chest.
Next, respondent admitted that she does not have a strong bond with SW, TW, and AW. Windfield affirmed that the children do not have a relationship with respondent and that they do not want to be around her. Windfield testified that SW, TW, and AW all view Windfield's wife as their mother, and refer to respondent as "Staci." Further, the evidence presented at the hearing demonstrates that the children all experience some form of emotional trauma or anxiety when around respondent. Windfield testified that, whenever respondent came to pick the children up for respondent's parenting time, TW would often act out, AW would cry, and SW would become very anxious.
Moreover, the evidence suggests that placing SW, TW, and AW with Windfield has allowed the children to flourish. Windfield testified that the lives of SW, TW, and AW have improved since respondent's parenting time was suspended. In general, the children's mood and quality of life has improved. Each child's grades have improved. Additionally, SW no longer suffers from significant anxiety and TW no longer suffers from nightmares.
Finally, Respondent contends that no harm would be done to SW, TW, and AW if her parental rights were left intact, but that contention is unfounded. Windfield testified that he is worried about what would happen to SW, TW, and AW if he were to die or become physically incapacitated. Windfield recognized the serious potential harm that could result to SW, TW, and AW in that situation. If that were to happen, the children would likely be placed in respondent's custody, which would expose all three children to the harm that the best-interest determination seeks to avoid. The record supports that it is in the best interests of SW, TW, and AW that respondent no longer have any connection to them so that the children can receive proper care and custody if anything were to happen to Windfield. Thus, all of the evidence indicates that the trial court clearly did not err in terminating respondent's parental rights to SW, TW, and AW.
Regarding DN, the child that respondent shares with Nichol, respondent contends that the trial court erred in terminating her parental rights because the court failed to give proper weight to the strong bond between DN and respondent. We disagree. The evidence presented at the best-interest hearing does support a finding that respondent and DN had a strong bond. Respondent testified that she and DN both love each other and have bonded as a mother and son. Debra Brokaw, DN's foster mother, observed respondent's interactions with DN and noted that the two of them were close and loved each other.
The evidence presented also supports a finding that respondent is seemingly able to parent DN better than she was able to parent SW, TW, and AW. Respondent testified that she always visits DN during her scheduled visits and even makes efforts to spend additional time with DN outside of those scheduled visits. Brokaw affirmed that respondent has been present for every visit with DN. Respondent has regularly spoken with DN's doctors and calls Brokaw to check on DN. Respondent has taken and completed parenting classes that have taught her how to listen to and take care of children. Also, respondent has taken steps, such as counseling and using medication, to help her cope with her anxiety and her posttraumatic stress disorder.
However, the evidence also suggests that respondent will likely fail in providing proper care and support for DN because of her history with SW, TW, and AW. As with the three older children, respondent exposed DN to two convicted sexual offenders in Nichol and Epstein. Further, there were allegations surrounding the investigation of Nichol's 2002 criminal sexual conduct conviction of his then step-daughter that he also sexually abused his (then) step-son. Additionally, Nichol testified that Epstein had some unsupervised contact with DN. Because respondent failed to protect SW from sexual abuse, it is a distinct possibility that respondent will fail to protect DN as well. Amber Davis, the Child Protective Services case worker assigned to this case, testified that she recommended that the trial court terminate respondent's parental rights to DN because the lack of protection overcame the bond between respondent and DN. Davis further testified that she was concerned about the safety of all four children. When DN was removed from respondent's care in October 2016, respondent provided Davis with her mother's name for placement of DN. Respondent claimed that she did not know that her brother, a convicted sex offender, was living with their mother at the time.
Respondent also argues that she does not have drug or alcohol issues and that Windfield's testimony to the contrary should be disregarded as he is a bitter ex-spouse. However, respondent admitted to Dr. Beckley that she only limited her alcohol and marijuana consumption while pregnant with DN, but did not cease her use. Thus, regardless of whether or not respondent actually has a drug or alcohol problem, Dr. Beckley concluded that respondent's failure to protect her three older children extended to DN as she failed to completely stop using alcohol and marijuana while pregnant.
The trial court also expressed concern that respondent's failure to emotionally and physically provide for SW, TW, and AW could extend to DN. Even though respondent has attended all of DN's recent doctor's appointments, respondent previously failed to attend doctor's appointments for SW, TW, or AW, and failed to give them their necessary medication. Respondent also failed to attend school events and parent-teacher conferences, and to properly dress the three older children. Further, SW, TW, and AW do not want to be around respondent because she failed to care for their physical and emotional needs, and that failure to care for those children could extend to DN as well. In re LaFrance Minors, 306 Mich. App. at 730 (explaining that how one parent treats a child is probative of how she would treat her other children).
Respondent argues that it is cruel and detrimental to DN to allow him to bond with his mother for approximately 18 months before terminating respondent's parental rights. Respondent further contends that DN would end up in the foster system and that would not be in his best interests. We disagree. This Court has concluded that the strength of a child's bond is only one factor to be considered, and that other factors, such as a child's need for permanence, stability, and safety, may overcome that strong bond. In re White, 303 Mich App at 714-716.
Therefore, notwithstanding the evidence presented at the best-interest hearing that respondent and DN have a strong bond and that respondent has been a more attentive parent to DN, the evidence presented supports the trial court's finding that termination of respondent's parental rights was in DN's best interests. As petitioner contended during its closing argument, respondent has not demonstrated that she could do the "heavy lifting" that parenting required, especially when life becomes hard or difficult. Thus, because the trial court's determination does not leave this Court with a definite and firm conviction that a mistake has been made, the trial court did not clearly err when it terminated respondent's parental rights as to DN.
Finally, respondent contends that petitioner was obligated, yet failed, to provide services to respondent under In re Terry, 240 Mich App 14; 610 NW2d 563 (2000). Respondent states that she qualifies for services under Terry and the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., because she has a low IQ of only 76. Respondent did not preserve this issue for appeal because Nichol, not respondent, raised the issue only during closing arguments, and the trial court never actually addressed the issue. Respondent only argues on appeal that Terry applies. Respondent did not raise that contention in a timely manner because a parent must assert the need for accommodation services "when the court adopts a service plan, not at the time of a dispositional hearing to terminate parental rights." In re Terry, 240 Mich App at 27. That failure constitutes a waiver. Id. at 26 n 5. Therefore, respondent's argument that petitioner was obligated to provide services under the ADA and Terry is without merit.
Respondent made several other arguments on appeal, but did not cite supporting case law that those alleged mistakes constituted reversible error. Therefore, the Court considers the arguments to be abandoned. Blackburne & Brown Mortg Co v Ziomek, 264 Mich App 615, 619; 692 NW2d 388 (2004) ("An appellant may not merely announce its position or assert an error and leave it to this Court to discover and rationalize the basis for its claims, unravel or elaborate its argument, or search for authority for its position. Insufficiently briefed issues are deemed abandoned on appeal.") (Quotation marks and citations omitted.)
In conclusion, the trial court did not clearly err in finding that termination of respondent's parental rights was in the best interest of all four children, SW, TW, AW, and DN, because respondent repeatedly failed to protect the children from convicted sexual offenders and respondent has not demonstrated that she will be able to consistently provide for their physical and emotional needs.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien