In Re J a Gordon Minor ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re J. A. GORDON, Minor. June 9, 2022
No. 358085
Wayne Circuit Court
Family Division
LC No. 2015-520977-NA
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
Respondent, the father of the minor child, appeals as of right the trial court’s order
terminating his parental right to the child under MCL 712A.19b(3)(b)(i), (c)(i), and (j). We affirm.
I.
Respondent first contends that the trial court erred when it found that the statutory grounds
for termination were established by clear and convincing evidence. 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).
The trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(b)(i),
(c)(i), and (j), which permit termination of parental rights under the following circumstances:
(b) The child or a sibling of the child has suffered physical injury or physical
or sexual abuse under 1 or more of the following circumstances:
(i) The parent’s act caused the physical injury or physical or sexual abuse
and the court finds that there is a reasonable likelihood that the child will suffer
from injury or abuse in the foreseeable future if placed in the parent’s home.
* * *
-1-
(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 either of the following:
(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.
* * *
(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.
The record supports the trial court’s reliance on these statutory grounds.
The most serious allegation that came to light during the lower court proceedings was the
child’s disclosure that respondent had sexually abused him. Approximately three years after the
child was removed from respondent’s care, the child disclosed to his therapist that respondent had
touched him in a sexually inappropriate manner. The child participated in a forensic interview
where he made disclosures consistent with what he had revealed to the therapist. After the court
held a tender-years hearing, the forensic interviewer was permitted to testify regarding statements
made by the child. The court concluded that the child’s allegations of sexual abuse were credible.
Respondent argues that the child’s statements were not credible and that his accusations
were fabricated because he was sexually preoccupied. The record indicates that the court carefully
considered all the evidence before concluding that the child’s accusations were credible. It
considered not only the substance of the allegations, but also the circumstances surrounding the
disclosures. It found specifically compelling that the child had been consistent in his disclosures.
Respondent had the opportunity to perpetrate the abuse because the child was in his unsupervised
care both before removal in November 2016 and during the case when unsupervised weekend
visitation was permitted. Although respondent suggests that something untoward could have
happened in the residential facility or at school, the child never identified anyone other than
respondent as the perpetrator. Further, contrary to respondent’s suggestion, there was no evidence
that the child had any encounters of a sexual nature with other students or residents. Indeed, the
residents were always supervised, and the child never had a roommate while a resident at the
facility.
In sum, the record discloses clear and convincing evidence from which the trial court
reasonably could have found that the child was sexually abused and respondent was the
perpetrator. “A reviewing court must defer to the special ability of the trial court to judge the
credibility of witnesses.” In re LaFrance, 306 Mich App 713, 723; 858 NW2d 143 (2014).
Accordingly, the trial court did not clearly err when it terminated respondent’s parental rights
pursuant to MCL 712A.19b(3)(b)(i).
Even if the court erred by finding that there was credible and sufficient evidence of sexual
abuse to warrant termination under MCL 712A.19b(3)(b)(i), the trial court also terminated
respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (j), and clear and convincing
-2-
evidence supports termination on these alternative grounds. “Only one statutory ground need be
established by clear and convincing evidence to terminate a respondent’s parental rights, even if
the court erroneously found sufficient evidence under other statutory grounds.” In re Ellis, 294
Mich App 30, 32; 817 NW2d 111 (2011).
“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 conditions that led to the adjudication included respondent’s
physical abuse of the child. After the adjudication, the court ordered respondent to comply with a
treatment plan designed to improve respondent’s parenting skills and remove the barriers to
reunification, which included, among other things, parenting classes, parenting time, a
psychological evaluation, individual therapy with an anger-management component, and family
therapy with the child. When substance abuse issues came to light, respondent stipulated to adding
a substance abuse component to his treatment plan. Despite these efforts, at the time of
termination, the evidence demonstrated that the circumstances that precipitated the child’s removal
continued to exist. Respondent was in no better position to parent the child than when the child
was removed from his care in November 2016. The record clearly demonstrates that during the
four years the child was a court ward, respondent could not obtain and maintain the stability and
skills necessary to safely parent his special-needs child. Respondent would take one step forward,
be granted additional privileges, and then engage in behavior that amounted to two steps backward.
One of the only services respondent completed was parenting classes. However, it is clear
that he did not benefit from this educational program. During supervised visits, respondent was
noted to engage in inappropriate behavior with the child, including kissing the child for an
extended period on the mouth, putting his hand up the child’s shirt, and resting his chin
inappropriately on the child’s lap. Respondent also improperly attempted to discuss the sexual
abuse allegations with the child, including instructing the child to retract his allegations. The
evidence also established that during the period respondent was granted unsupervised parenting
time, he again physically abused the child.
Also supporting the trial court’s ruling was that respondent failed to adequately address his
substance abuse issues, as he admitted to using marijuana every day and consuming alcohol to
cope with the removal of his child. At least two witnesses testified that respondent frequently
arrived at parenting time smelling of alcohol and behaving in a manner suggesting that he was
under the influence. On at least one occasion, when the caseworker arrived at the home to pick up
the child from an unsupervised visit, a strong odor of alcohol was noted. Respondent refused the
caseworker’s request at those times to submit to a drug test. Indeed, respondent engaged in a
wholesale failure to comply with the court’s order requiring weekly random drug and alcohol
screens.
Likewise, the evidence established that respondent refused to participate fully in services
intended to address his substance abuse issues. The caseworker acknowledged that she did not
specifically refer respondent to a substance abuse treatment program because respondent was
struggling to comply with the existing services, so she was reluctant to add an additional service.
However, the caseworker testified that substance abuse was an integral component of respondent’s
-3-
individual therapy, but respondent did not consistently attend his counseling appointments. At the
February 25, 2021, termination hearing, the caseworker assigned to work with the family since
July 2019 testified that she had referred respondent six times to individual therapy, but each referral
was terminated for noncompliance. Accordingly, respondent rejected an opportunity to fully
address a significant obstacle to reunification with his son.
Clear and convincing evidence supports the trial court’s finding that, at the time of
termination, the conditions that led to the adjudication continued to exist. Further, the record
similarly establishes that there was no reasonable likelihood that respondent would be in a position
to safely parent his child within a reasonable time. At the time of termination, the child had been
in care for more than four years. During that time, respondent was unwilling or unable to address
the barriers to reunification. There was no reasonable likelihood that respondent would shed his
longstanding behavioral patterns if given more time. Accordingly, the trial court did not clearly
err when it found clear and convincing evidence to terminate respondent’s parental rights pursuant
to MCL 712A.19b(3)(c)(i) and (j).
II.
Next, respondent argues that the trial court erred by finding that termination of parental
rights was in the child’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 the
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, 42; 823 NW2d 144
(2012). The court may also consider psychological evaluations, the child’s age, continued
involvement in domestic violence, and a parent’s history. In re Jones, 286 Mich App 126, 131;
777 NW2d 728 (2009). “The trial court should weigh all the evidence available to determine the
children’s best interests.” In re White, 303 Mich App at 713. In considering the child’s best
interests, the trial court’s focus must be on the child and not the parent. In re Moss, 301 Mich App
76, 87; 836 NW2d 182 (2013). Whether termination of parental rights is in a child’s best interests
must be proven by a preponderance of the evidence. Id. at 90. This Court reviews for clear error
a trial court’s finding that termination of parental rights is in a child’s best interests. In re Jones,
286 Mich App at 129.
The trial court did not clearly err when it found that termination of respondent’s parental
rights was in the child’s best interests. Children require parents who can provide them with a safe,
stable, and permanent home. This was particularly important for this child because of his special
needs. The child was cognitively impaired, and he suffered from ADHD. His treating therapist
testified that he required 24-hour care and needed ongoing therapeutic services, including speech,
language, and life skills. The evidence demonstrated that respondent was not able to meet the
child’s special needs. Respondent had not benefited from the services offered, and substance abuse
continued to be an obstacle to reunification. Further, when respondent was granted unsupervised
parenting time, he physically and likely sexually abused the child. These events occurred while
respondent was being scrutinized by DHHS and the court.
-4-
Moreover, there is evidence from which the court could have discerned that the child did
not want to return to respondent’s home. The child’s speech and language skills were significantly
impaired, so he could not articulate his needs and desires. However, the testimony established that
when respondent was permitted unsupervised visits with his son, the child acted out with extreme
behaviors before the visits.
At the time of termination, the child was 15 years old. He had been a ward of the court for
more than four years, and for the vast majority of that time he resided at CCH. The caseworker
and CCH staff testified that the child would age out of the program in a few years, but because of
his cognitive impairments, exceptions could be made. Respondent suggests that termination of his
parental rights was not warranted because there was no viable permanency plan for the child and
that respondent’s home remained the only remaining placement for the child. However, the
caseworkers continued to explore other placement options for the child. Further, the child was
thriving at CCH, he felt safe there, and his therapist explained that the child was bonded to
individuals in the CCH community. More significantly, although the child’s future was uncertain,
a preponderance of the evidence established that respondent’s home was not a viable placement
option because the child would not be safe in respondent’s care. Termination of respondent’s
parental rights was the only avenue to ensure that respondent would not have the ability to harm
the child going forward. The trial court did not clearly err when it found that termination of
respondent’s parental rights was in the child’s best interests.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Christopher M. Murray
-5-