In Re D E Bentley Jr 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UNPUBLISHED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 D. E. BENTLEY, JR., Minor. July 14, 2022
No. 359642
Saginaw Circuit Court
Family Division
LC No. 19-035881-NA
Before: GLEICHER, C.J., and GADOLA and YATES, JJ.
PER CURIAM.
Respondent-father appeals as of right the order terminating his parental rights to the minor
child, DEB, under MCL 712A.19b(3)(a)(ii) (parent has deserted child for more than 91 days),
(c)(i) (conditions of adjudication continue to exist), (g) (failure to provide proper care or custody),
and (j) (reasonable likelihood of harm if returned to parent). We affirm.
I. FACTUAL BACKGROUND
In August 2019, the Department of Health and Human Services (DHHS) removed DEB
from his mother’s care. At the time, respondent was not involved in DEB’s life. DEB’s mother
represented that respondent was then providing some child support but had not seen DEB since
the previous winter. When DEB was removed from the mother’s care, per the mother’s request
given respondent’s lack of participation in DEB’s life, DEB was placed in foster care. Eventually,
respondent reached out to DHHS and indicated that he was willing to participate in services.
Respondent’s participation in services, however, was at best uneven. Although respondent
initially completed parenting classes and engaged in supervised visitation, respondent habitually
left 30 minutes early from his one-hour visits with DEB. When he was there, he minimally
engaged with DEB and workers often wondered if he was drunk based upon his behavior.
Additionally, respondent’s last parenting-time visit was in May 2021. Thereafter, respondent
failed to appear for visits for the next five months and discontinued the use of services. By the
end of this time period, DEB no longer asked about respondent and was not excited at the prospect
of seeing him. Caseworkers testified that respondent and DEB had a poor bond that further
deteriorated over time. During that same five-month time period, respondent failed to complete
services and failed to appear at a hearing. Respondent had difficulty obtaining housing and he
refused aid in obtaining Section 8 housing assistance. He acknowledged using marijuana, but also
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tested positive for cocaine several times. Once, through his counsel, he hypothesized that he tested
positive for cocaine because his marijuana was laced with it. At another point, he directly
acknowledged using cocaine a month before the termination hearing. Respondent attended a
psychological evaluation and was recommended for counseling. But he failed to complete that
counseling and claimed on multiple occasions that he felt he did not need treatment.
At the termination hearing, respondent attributed his five-month absence to a variety of
factors, including the death of his long-time girlfriend and several emergency-room visits due to
food poisoning and an alleged assault. Respondent, however, was not in the emergency room at
the time his visits with DEB were scheduled.
The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(a)(ii),
(c)(i), (g), and (j). With regard to MCL 712A.19b(3)(a)(ii), the referee found that respondent had
disappeared for several months. The referee acknowledged the death of respondent’s girlfriend,
but emphasized that the continual excuses for why respondent could not be involved in the child’s
life lacked merit. Regarding MCL 712A.19b(3)(c)(i), the referee found that more than 182 days
had elapsed since the initial dispositional order and that the conditions that led to adjudication
continued to exist with no reasonable likelihood that they would be rectified within a reasonable
time. Although respondent had purportedly secured housing shortly before the termination
hearing, he did not provide DHHS sufficient time to review the housing. Respondent also failed
to engage in individual counseling or parenting time. The referee found that MCL 712A.19b(3)(g)
was satisfied on the basis of respondent’s belief that the monthly child support amount of $200
was enough to properly care for DEB. The referee acknowledged that respondent receives some
income, but not enough to furnish the financial means to care for DEB or provide proper care or
custody. Finally, regarding MCL 712A.19b(3)(j), the referee explained that respondent continued
to use cocaine, which presented a reasonable likelihood that DEB would be harmed if placed in
respondent’s care. Respondent also failed to demonstrate adequate parenting skills during
parenting time.
With respect to DEB’s best interests, the referee noted that DEB was attending school and
doing well in his foster home. In contrast, DEB did not do well during a brief return to his mother’s
care during the pendency of this case. The referee found that DEB needed stability and
permanency. Therefore, termination of respondent’s parental rights and adoption were in DEB’s
best interests. The trial court adopted the referee’s findings and terminated respondent’s parental
rights. The trial court also terminated the parental rights of DEB’s mother. Respondent now
appeals.
II. GROUNDS FOR TERMINATION
On appeal, respondent argues that the trial court erred by finding, by clear and convincing
evidence, that MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j) provided statutory grounds to terminate
his parental rights. We disagree. “To terminate parental rights, the trial court must find that at least
one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and
convincing evidence.” In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). “This Court
reviews for clear error the trial court’s factual findings and ultimate determinations on the statutory
grounds for termination.” In re White, 303 Mich App 701, 709; 846 NW2d 61 (2014). This Court
will reverse the trial court’s decision, even if the evidence supports the trial court’s findings, if this
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Court is “definitely and firmly convinced” that the trial court made a mistake. Id. “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, 700; 847 NW2d 514 (2014) (quotation
marks and citation omitted).
Under MCL 712A.19b(3)(a)(ii), termination is appropriate if the trial court finds, by clear
and convincing evidence, that “[t]he child’s parent has deserted the child for 91 or more days and
has not sought custody of the child during that period.” Respondent argues that the trial court
erred when it found that this statutory ground had been met because it “did not assign any weight
to the many reasons why” he was unable to attend parenting-time visits scheduled during the
summer of 2021. Respondent’s argument lacks merit.
We acknowledge that respondent attributes his absence to his girlfriend’s death and the
fact that he was in the emergency room five times during August and September 2021. However,
respondent’s girlfriend died in mid-June 2021, and respondent represented that he became sick
with food poisoning about a month later. He did not attempt to contact DHHS or visit DEB in the
meantime. And when respondent eventually contacted DHHS in late July 2021, he continued to
miss visits with DEB. Respondent acknowledged that he told a DHHS caseworker he was never
admitted to the hospital on the occasions he missed parenting time. Respondent also never
contacted DHHS to reschedule the visits (or other services) around his emergency-room visits.
Respondent discontinued all DHHS services in May 2021, including drug testing, individual
counseling, and any other services.
Respondent had myriad reasons for not getting in touch with DHHS and DEB. The referee
acknowledged and considered these reasons, but concluded they were insufficient to show that
respondent had not deserted DEB. Whether respondent intentionally deserted DEB was a
credibility contest, and we will defer to the trial court’s credibility determination on this question.
See Dearmon, 303 Mich App at 700. Respondent showed that he knew how to reach the
caseworker when he contacted DHHS to resume visits in July 2021. His claim that he did not know
the identity of his caseworker lacked merit. For these reasons, the trial court did not clearly err
when it concluded, by clear and convincing evidence, that MCL 712A.19b(3)(a)(ii) provided a
statutory ground for termination.
Only one statutory ground was required to terminate respondent’s parental rights. See In
re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). Nevertheless, we agree with the trial
court that additional statutory grounds existed to terminate respondent’s parental rights. Under
MCL 712A.19b(3)(c)(i), termination is appropriate when 182 or more days have elapsed since the
initial dispositional order, and the trial court finds, by clear and convincing evidence, that “[t]he
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.” Here, well
over 182 days had elapsed between the entry of the initial dispositional order in October 2019 and
the date when the trial court ordered termination of respondent’s parental rights in November 2021.
At the beginning of the case, respondent was without adequate housing, experiencing issues with
substance abuse, refusing treatment for his mental health, and lacking parenting skills. These
conditions persisted throughout the case.
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Although respondent had apparently obtained a two-bedroom apartment prior to the
termination hearing, he had not obtained the housing in time for DHHS to determine whether it
was adequate. As the referee explained, respondent’s ability to obtain housing came too late.
Respondent had not been attending drug screens. When he did attend drug screens, he regularly
tested positive for marijuana and cocaine. Respondent even acknowledged that he had used
cocaine a month before the termination hearing. Respondent attended a substance-abuse program,
but did not attend individual counseling. By the time of the termination trial, respondent had
deserted DEB for approximately five months. Respondent testified that he missed parenting-time
visits because he was in the hospital, but he later acknowledged to the caseworker that he was
never admitted to the hospital on the occasions he missed parenting time. When he actually
attended visits, respondent continued to exhibit improper parenting behavior. He was not engaged
and would regularly leave early. In other words, respondent had not rectified the conditions
leading to adjudication—namely, his problems with housing, substance abuse, mental health, and
parenting skills. There was no reasonable likelihood that the conditions would be rectified within
a reasonable time considering DEB’s young age. Even before his girlfriend’s death and his
hospitalization, respondent had nearly two years to participate in services and address the
conditions leading to adjudication. He made virtually no progress with regard to his parenting
skills, mental health, or substance-abuse issues. Accordingly, the trial court appropriately
terminated respondent’s parental rights under MCL 712A.19b(3)(c)(i).
For similar reasons, the trial court did not clearly err when it concluded that MCL
712A.19b(3)(g) provided a statutory ground for termination. MCL 712A.19b(3)(g) provides for
termination when “[t]he 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.” A parent’s failure to participate and benefit from the service plan is evidence that the parent
will not be able to provide proper care and custody and that the child will be harmed if returned to
the parent. White, 303 Mich App at 710-711. During the termination hearing, the referee
considered whether respondent had the financial means to care for DEB. He concluded that
respondent had the financial ability to provide proper care and custody but did not do so. The
record supports the referee’s finding. The trial court, therefore, did not clearly err by concluding
that MCL 712A.19b(3)(g) provided a statutory ground for termination.
Finally, MCL 712A.19b(3)(j) provides that termination is appropriate 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.” At the time of the termination hearing,
respondent had not visited DEB in five months. He failed to obtain housing for nearly two years,
and he did not provide DHHS with sufficient notice to examine his new apartment. Respondent
continued to test positive for cocaine, and then he failed to appear for drug testing. He
acknowledged that he had consumed cocaine a month before the termination hearing. He also
completed only 7 of 16 drug-counseling sessions. Finally, when he did appear for visitation,
respondent habitually left early and failed to engage with DEB. Respondent failed to demonstrate
the parenting skills he learned in his parenting classes. Under the circumstances, the trial court
did not clearly err when it found that there was a reasonable likelihood that DEB would be harmed
if returned to respondent. In sum, the trial court did not clearly err when it determined that statutory
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grounds existed under MCL 712A.19b(3)(a)(ii), (c)(i), (g), and (j) to terminate respondent’s
parental rights.
III. BEST INTERESTS OF THE CHILD
Respondent next argues that the trial court clearly erred by concluding, by a preponderance
of the evidence, that termination was in DEB’s best interests. Again, we disagree. As with the
statutory grounds for termination, we review the finding that termination is in the children’s best
interests for clear error. White, 303 Mich App at 713. Once a trial court has concluded that DHHS
has established a statutory ground for termination by clear and convincing evidence, it then must
determine, by a preponderance of the evidence, whether termination is in the best interests of the
minor children. Id. A trial court weighs a variety of factors, 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.’ ” Id., quoting In re Olive/Metts, 297
Mich App 35, 41-42; 823 NW2d 144 (2012). “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. A trial court must consider the best interests of each
child individually. Olive/Metts, 297 Mich App at 42.
Respondent relies upon Olive/Metts to support his argument that the trial court failed to
adequately consider DEB’s best interests as it related to respondent. He contends that when the
referee ruled that termination was in DEB’s best interests, the ruling only pertained to DEB’s
mother. Respondent also argues that the referee failed to consider DEB’s best interests separate
from the best interests of DEB’s brother.1 In Olive/Metts, this Court concluded that the trial court
must decide the best interests of each child individually. Id. In most cases, however, it will be in
the best interests of each child to remain together. Id. This Court clarified that a trial court need
only consider the differences in the best interests of the children if they significantly differ. White,
303 Mich App at 715. In other words, Olive/Metts “does not stand for the proposition that the trial
court errs if it fails to explicitly make individual and—in many cases—redundant factual findings
concerning each child’s best interests.” Id. at 716.
We agree with DHHS and the lawyer-guardian ad litem that, when the referee’s decision
is read as a whole, the referee’s findings of fact support the best-interest determination. The referee
rendered a detailed ruling on the record providing the factual and legal bases for termination of
respondent’s parental rights. These findings were specific to DEB and respondent. The referee
also explained that termination was in DEB’s best interests because it would provide him with
permanency and stability. The trial court then concluded, in its written order, that termination of
respondent’s parental rights was in DEB’s best interests.
1
DEB’s mother had another child, KTP, who was also at issue in the termination proceedings.
The court terminated the mother’s parental rights to DEB and KTP. However, respondent is not
KTP’s father.
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With regard to respondent’s visitation history, the referee explained that respondent
initially attended visits with DEB but routinely left early. As for respondent’s parenting ability,
the referee noted that respondent did not engage with DEB during the visits and exhibited
inappropriate behavior. To be sure, respondent testified he was hospitalized on five occasions in
the summer of 2021. But he admitted that the emergency-room trips did not coincide with his
scheduled visits with DEB. And, again, he missed all visits from May to October 2021. The
referee also discussed respondent’s failure to comply with his case service plan. Respondent
refused to participate in individual counseling. He initially refused to engage in drug testing.
Respondent’s housing was an issue throughout the case, and he never verified with DHHS that he
obtained adequate housing. Eventually, respondent simply stopped contacting DHHS and ceased
contact with DEB.
There was also record testimony that respondent was not aware of DEB’s year in school,
nor did he have any knowledge of DEB’s current placement. DEB was doing well in his foster-
care placement. He was attending school and was well-behaved. DEB no longer got excited to
see respondent and did not ask about him. In fact, DEB seemed more excited to see his caseworker
than respondent. Finally, as the referee noted, DHHS explored placing the children with relatives,
but no viable relative placements were found. Accordingly, it was not clearly erroneous to find
that termination of respondent’s parental rights was in DEB’s best interests.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael F. Gadola
/s/ Christopher P. Yates
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