In Re Davis Minors ( 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UNPUBLISHED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 DAVIS, Minors. June 23, 2022
No. 358461
Calhoun Circuit Court
Family Division
LC No. 2015-002148-NA
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
PER CURIAM.
Respondent-father appeals as of right the trial court’s order terminating his parental rights
to the minor children, QD and VD, under MCL 712A.19b(3)(j). On appeal, father argues that the
trial court erred when it determined that reasonable efforts had been made to reunify the family.
We disagree and affirm.
I. PRESERVATION AND STANDARD OF REVIEW
Generally, to preserve an issue for appellate review, a party must raise the issue before the
trial court. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Arguing that his challenge
to whether the DHHS made reasonable efforts to reunite the family is preserved, father represents
that, during closing arguments at the termination trial, he requested more time and services.
However, in In re Terry, 240 Mich App 14, 27; 610 NW2d 563 (2000), this Court explained that
“[t]he time for asserting the need for accommodation in services is when the court adopts a service
plan, not at the time of a dispositional hearing to terminate parental rights.” Accordingly, father’s
request for more time during closing arguments at the termination trial was insufficient to preserve
his reasonable efforts argument. See id.Generally, this Court reviews for clear error a trial court’s finding that reasonable efforts
were made to preserve and unify a family. In re Fried, 266 Mich App 535, 542-543; 702 NW2d
192 (2005).
The clear-error standard controls our review of both the court’s decision
that clear and convincing evidence supported a ground for termination and that
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termination served the children’s best interests. Clear error exists when some
evidence supports a finding, but a review of the entire record leaves the reviewing
court with the definite and firm conviction that the lower court made a mistake. In
reviewing the circuit court’s decision, we also must give due regard to the trial
court’s special opportunity to observe the witnesses. [In re Dearmon, 303 Mich
App 684, 699-700; 847 NW2d 514 (2014) (quotation marks and citations omitted).]
However, this Court reviews for plain error affecting substantial rights unpreserved issues.
Utrera, 281 Mich App at 8. “Reversal is warranted only when the plain, forfeited error resulted
in the conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.”
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (quotation marks, citation, and
alteration omitted).
Father contested termination throughout the trial court proceedings. Therefore, to the
extent father challenges the trial court’s findings on the statutory grounds for termination or
whether termination was in the children’s best interests, this claim of error is preserved. See
Utrera, 281 Mich App at 8.
The trial court must find at least one of the statutory grounds for termination by clear and
convincing evidence in order to terminate parental rights. In re Gonzalez/Martinez, 310 Mich App
426, 431; 871 NW2d 868 (2015). If this Court finds that the trial court did not clearly err as to the
existence of one ground for termination, this Court need not address any additional termination
grounds. See In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). Additionally, “[e]ven
if the trial court finds that the Department has established a ground for termination by clear and
convincing evidence, it cannot terminate the parent’s parental rights unless it also finds by a
preponderance of the evidence that termination is in the best interests of the children.”
Gonzalez/Martinez, 310 Mich App at 434.
II. REASONABLE EFFORTS
The trial court did not plainly err when it found that the DHHS made reasonable efforts to
reunify the family.
Generally, during the dispositional phase, the DHHS “has an affirmative duty to make
reasonable efforts to reunify a family before seeking termination of parental rights.” In re Hicks,
500 Mich 79, 85; 893 NW2d 637 (2017), citing MCL 712A.18f(3)(b) and (c), and
MCL 712A.19a(2). “As part of these reasonable efforts, the Department must create a service plan
outlining the steps that both it and the parent will take to rectify the issues that led to court
involvement and to achieve reunification.” Hicks, 500 Mich at 85-86. The case service plan must
include, in relevant part, a schedule of services “to be provided to the parent, child, and if the child
is to be placed in foster care, the foster parent, to facilitate the child’s return to his or her home or
to facilitate the child’s permanent placement.” MCL 712A.18f(3)(d); see also In re Mason, 486
Mich 142, 156; 782 NW2d 747 (2010). The parent should be given a reasonable time to make
changes and benefit from services before termination of parental rights. See Mason, 486 Mich
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at 159. The trial court should regularly update the plan to account for the parent’s progress and
developing needs. Id. at 156.
The trial court did not plainly error when it found that reasonable efforts had been made to
reunify the family. As the trial court found, this case did not “begin” in January 2019 when the
children were removed. The older children had been removed from their home three times. Father
and mother had an extensive history of involvement with Children’s Protective Services dating
back to 2015. When QD and the older children were returned to mother’s care, QD was not
returned to father because father was found to not have benefited from services. Father was offered
parenting-time visits and drug screens, but his participation in these services was spotty at best.
Although father reported attending individual counseling, Merridessa Katz, testifying as an expert
in psychology, testified that she did not see how father had benefited from counseling, even after
three removals. Caseworkers testified that father refused to participate in services.
Father’s argument about the COVID-19 pandemic is without merit. Termination occurred
in 2019. COVID-19 related shutdowns in our state first occurred in March 2020. In re Certified
Questions from the United States Dist Court, 506 Mich 332, 338; 958 NW2d 1 (2020).
As discussed later, any error did not affect father’s substantial rights because the record
supported the trial court’s findings on the statutory ground for termination and the children’s best
interests.
III. STATUTORY GROUND
Although father makes no affirmative argument that the statutory grounds for termination
were not met or that termination was not in the children’s best interests, we have reviewed the
record and are satisfied with the trial court’s findings.
Father’s parental rights were terminated pursuant to MCL 712A.19b(3)(j), which provides
as follows:
(3) The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
* * *
(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.
Termination of parental rights under MCL 712A.19b(3)(j) is proper when “[t]here 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.” See also Gonzalez/Martinez, 310 Mich
App at 433-434. This statutory factor considers not only the harm that may result from the parent’s
conduct toward the child but also harm that might reasonably result from the parent’s conduct
around the child, such as exposing a child to individuals with criminal backgrounds who might
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exploit the children or otherwise place them at risk. See In re White, 303 Mich App 701, 712; 846
NW2d 61 (2014). A parent’s “lengthy period of instability” stemming from mental-health issues,
combined with a present and “continuing lack of judgment, insight, and empathy” for a child is
also relevant to this statutory ground. Utrera, 281 Mich App at 25. This Court has recognized
that Subdivision (j) considers not only the prospect of physical harm, but also the risk of emotional
harm. See In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). Harm may also include
the prospect that the parent’s behavior would negatively influence the children. See In re
Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012). The trial court must “scrutinize
the likelihood of harm if the child were returned to the parent’s home” at the conclusion of the
child protective proceedings, not at that exact moment in time. See In re Pops, 315 Mich App
590, 600; 890 NW2d 902 (2016).
Record testimony properly supported the trial court’s finding that the DHHS had met its
burden on this statutory ground. Katz testified that father’s psychological evaluation revealed that
father had narcissistic tendencies, an inability to put the needs of the children ahead of his own,
and a large need for control, which combined with his suppressed anger and volatility, potentially
placed the children at risk of harm. Testimony reflected that the children were scared of father.
Testimony reflected that at least one child witnessed father physically abusing mother. Testimony
reflected that mother and father would argue and fight in front of the children to a degree that
caused the children to hide in one of their closets. Testimony reflected that drugs were present in
the home and that father consistently, when he tested, tested positive for controlled substances.
Accordingly, the trial court did not clearly err when it found that the DHHS met its burden on this
statutory ground.
IV. BEST INTERESTS
“In making its best-interest determination, the trial court may consider the whole record,
including evidence introduced by any party.” In re Medina, 317 Mich App 219, 237; 894 NW2d
653 (2016) (quotation marks and citation omitted). “[T]he 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,” are all factors for the court to consider when deciding
whether termination is in the best interests of the child. White, 303 Mich App at 713. A child’s
placement with relatives is a factor that the trial court is required to consider. Mason, 486 Mich
at 164; see MCL 712A.19a(6)(a). “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.” White, 303
Mich App at 714. On appeal, this Court places its focus on the child rather than the parent. In re
Schadler, 315 Mich App 406, 411; 890 NW2d 676 (2016).
The trial court did not clearly err when it found that termination was in QD and VD’s best
interests. Even though QD was very young, this case was not his first removal. His older siblings
had been removed three times. Father was found to not have benefited from services in those
previous cases. Father had been accused of domestic violence, and at least one of the children
reported seeing father physically abuse mother. The older children reported being afraid of father.
The numerous removals the older children had faced without significant improvement from father
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(or mother) in rectifying their consistent barriers reflected a sense that QD and VD would not know
stability, permanence, or a sense of safety while in father’s care. QD and VD were placed together
in a preadoptive home, where they had experienced no developmental problems, despite VD being
born positive for controlled substances.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Kristina Robinson Garrett
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