In Re Conley , 216 Mich. App. 41 ( 1996 )

549 N.W.2d 353 (1996) 216 Mich. App. 41

In re CONLEY, Minors.
Department of Social Services, Petitioner-Appellee,
v.
Debra Conley, Respondent-Appellant, and
Greg Conley, Respondent.

Docket No. 175489.

Court of Appeals of Michigan.

Submitted February 21, 1996, at Grand Rapids. Decided March 22, 1996, at 9:05 a.m. Released for Publication June 11, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Margaret M. Chiara, Prosecuting Attorney, and Jeffrey L. Baumann, Chief Assistant Prosecuting Attorney, for petitioner.

Patricia N. Conlon, Portage, for Debra Conley.

Before MARKEY, P.J., and HOLBROOK, and MATUZAK,^[*] JJ.

PER CURIAM.

Debra Conley (hereafter respondent) appeals by leave granted from the probate court's order terminating her parental rights to her minor children, Kyle Dean Conley and Travis Theodore Conley, pursuant to M.C.L. § 712A.19b(3)(c)(i); M.S.A. § 27.3178(598.19b)(3)(c)(i) (more than 182 days have elapsed, conditions leading to the adjudication continue to exist, and no reasonable likelihood exists that they will be rectified within a reasonable time) and M.C.L. § 712A.19b(3)(g); M.S.A. § 27.3178(598.19b)(3)(g) (without regard to intent, parent fails to provide care and custody and there exists no reasonable likelihood of change within reasonable amount of time). We affirm.

First, we review appeals from orders terminating parental rights to determine whether the probate court's findings of fact are clearly erroneous, i.e., although evidence exists to support a finding, are we left with the definite and firm conviction that a mistake has been made. MCR 5.974(I); In re Miller, 433 Mich. 331, 337, 445 N.W.2d 161 (1989); In re Vasquez, 199 Mich.App. 44, 51, 501 N.W.2d 231 (1993). Once the probate court finds at least one statutory ground for termination to be supported by clear and convincing evidence, the court's decision to terminate is discretionary and the child's best interests are considered. Id. at 51-52, 501 N.W.2d 231.

In the case at bar, we find that clear and convincing evidence supported termination of respondent's parental rights under subsections 3(c)(i) and (g), and that termination was in the children's best interests. In light of petitioner's six-year involvement in respondent's battle with alcohol, which was the condition that led to the termination of respondent's parental rights, and the probate court's knowledge of the repeated and extensive steps taken to assist respondent in attempting to overcome this disease and the unsuccessful results achieved, we are not left with a definite and firm conviction that a mistake has been made here. Id. The uncontroverted evidence established that, because of respondent's alcohol addiction, Kyle was removed from respondent's custody in 1988 but was later returned when she began treatment for her addiction. After respondent attended at least three inpatient treatment programs, Alcoholics Anonymous meetings, and other counseling sessions, she relapsed. Both children were taken into protective custody in March 1992 because they were left alone with respondent, who was continuously intoxicated and unable to care for them, particularly in light of the fact that Kyle (and possibly his younger brother, Travis) suffered the physical effects of fetal alcohol syndrome. During the pendency of the probate court proceedings, respondent continued to relapse and abuse alcohol, even though she was attending inpatient treatment programs (but never completed a program) and participating in counseling. Respondent's husband also contributed to the problem by purchasing alcohol for respondent and leaving the children at home with her while she was intoxicated.

We therefore find that clear and convincing evidence existed to show that respondent had not overcome her alcoholism despite extensive treatment and counseling, that no reasonable likelihood existed that the situation would be rectified within a reasonable time, and that respondent failed to provide proper care or custody for the children. M.C.L. § 712A.19b(3)(c)(i) and (g); M.S.A. § 27.3178(598.19b)(3)(c)(i) and (g).

Further, we reject respondent's unsupported assertion that the probate court failed to make findings of fact or conclusions of law pertaining to the basis for terminating respondent's parental rights or regarding the children's best interests. In light of the expert and other testimony concerning the adverse effect of respondent's alcoholism upon the children, their improvement during foster care, and their placement with their grandparents, we believe that the court's findings of fact regarding respondent's inability to care for her children and the children's best interests were sufficient and were not clearly erroneous.^[1] MCR 5.974(G). Accordingly, the probate court did not abuse its discretion in finding that termination was in the children's best interests. M.C.L. § 712A.19b(3); M.S.A. § 27.3178(598.19b)(3); In re Jackson, 199 Mich.App. 22, 25, 501 N.W.2d 182 (1993).

Second, we find that the probate court did not abuse its discretion in denying respondent's late request for appointment of appellate counsel simply because her request was untimely. Cf. People v. Cottrell, 201 Mich.App. 256, 259, 506 N.W.2d 12 (1993). Unlike in criminal proceedings where MCR 6.425(F)(1)(b) requires the court to liberally grant an untimely request for appointed appellate counsel "as long as the defendant may file an application for leave to appeal," the probate court may, pursuant to MCR 5.974(H)(2) and "[i]n the interest of justice,... appoint an attorney where the request is filed untimely." We reject respondent's assertion that we should interpret MCR 5.974(H)(2) in the same manner as MCR 6.425(F)(1)(b) despite the clear differentiation between these court rules and the differences in these types of proceedings. See, generally, In re Brock, 442 Mich. 101, 108-109, 499 N.W.2d 752 (1993). If we create a blanket rule that all untimely requests should be granted where lateness is the only reason to deny the request, we will impermissibly rob the probate court of its discretion to make that decision under MCR 5.974(H)(2). Thus, we will not apply the rule stated in Cottrell, supra at 259, 506 N.W.2d 12, as the standard that also governs untimely requests for appointment of appellate counsel in termination proceedings.

Third, the probate court did not abuse its discretion in denying respondent's request for substitute counsel on the second day of the three-day termination hearing that spanned the course of one month. See People v. Mack, 190 Mich.App. 7, 14, 475 N.W.2d 830 (1991). Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial proceedings. Here, respondent's counsel demonstrated dedication and commitment to her case. Moreover, granting respondent's request would have disrupted the judicial process, extensively delayed a case that had been proceeding for almost two years, and delayed the children's permanent placement in foster care. Also, in light of respondent's failure to explain the basis for her request or to establish good cause, we find no error on the basis of our review of the whole record. Id.

Affirmed.

NOTES

[*] Michael J. Matuzak, 34th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

[1] In its addendum to its findings of fact attached to the termination order, the probate court described respondent as "a hopeless alcoholic who presently is incarcerated awaiting sentence for OUIL 3rd, [and who] cannot and will not stop drinking or establish a fit and proper home." This description is overwhelmingly supported by the evidence on the record.