In Re B M Henderson 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UNPUBLISHED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 B. M. HENDERSON, Minor. July 21, 2022
No. 360075
Wayne Circuit Court
Family Division
LC No. 2012-509869-NA
Before: JANSEN, P.J., and O’BRIEN and HOOD, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
minor child, BMH. The trial court terminated respondent’s parental rights under MCL
712A.19b(3)(g) (parent failed to provide proper care or custody and no reasonable expectation
parent will provide proper care or custody within a reasonable time), (i) (parental rights to one or
more siblings terminated due to neglect or abuse and prior attempts to rehabilitate the parent have
been unsuccessful), and (j) (reasonable likelihood child will be harmed if returned to the parent’s
home).1 We affirm.
In October 2019, shortly after BMH was born, petitioner, the Department of Health and
Human Services (the DHHS), filed an original permanent custody petition. The petition alleged
that respondent previously had her parental rights terminated to three other children “because of
her untreated mental health issues,” which the petition identified as diagnoses for “bipolar disorder
and schizoaffective disorder.”2 According to the petition, respondent’s mental health issues
required medication and counseling, but respondent was not compliant with her medication nor
participating in counseling. The petition also alleged that respondent was “a legally incapacitated
1
The trial court also terminated BMH’s unidentified father’s rights under MCL 712A.19b(3)(a)(i)
(parent is unidentifiable) and (k)(i) (parent abused the minor child and the abuse included
abandonment).
2
Throughout the lower court proceedings, the parties and the trial court used “schizoaffective
disorder” and “schizophrenia” interchangeably, but the petition alleged that respondent had
schizoaffective disorder.
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individual,” and that she had not provided any prenatal care for BMH until 34 weeks into her
pregnancy. The petition asked the trial court to take jurisdiction of BMH and terminate
respondent’s parental rights.
At the eventual termination hearing in February 2020, Amber Gayden, the Children’s
Protective Services (CPS) Investigator who filed the petition, testified about the allegations in the
petition. Pertinently, Gayden testified that respondent had not been treated for her mental health
disorders in about two years, that respondent had “unstable housing,” and that respondent had
provided limited prenatal care to BMH by not visiting a doctor until she was 34 weeks pregnant.
At the end of hearing, the trial court found clear and convincing evidence to terminate
respondent’s parental rights under MCL 712A.19b(3)(g), (i), and (j). After delivering its ruling,
the trial court stated that it would schedule a separate hearing to determine the best interests of
BMH.
However, due to the pandemic and respondent’s objection to holding a best-interest hearing
by Zoom, the best-interest hearing did not occur until January 2022. At the end of the best-interest
hearing, after hearing the evidence and listening to the parties’ arguments, the trial court found by
a preponderance of the evidence that termination of respondent’s parental rights was in BMH’s
best interests. This appeal followed.
Respondent raises two issues on appeal: (1) whether the trial court properly found statutory
grounds for termination by clear and convincing evidence and (2) whether the trial court properly
found by a preponderance of the evidence that termination was in BMH’s best interests.3
3
To the extent that respondent seemingly challenges whether she was afforded reasonable efforts,
that issue is waived because respondent did not include the issue in her questions presented and
otherwise did not sufficiently brief the issue on appeal. See English v Blue Cross Blue Shield of
Michigan, 263 Mich App 449, 459; 688 NW2d 523 (2004) (“An issue not contained in the
statement of questions presented is waived on appeal.”); McIntosh v McIntosh, 282 Mich App 471,
485; 768 NW2d 325 (2009) (“Further, this Court has held repeatedly that appellants may not
merely announce their position and leave it to this Court to discover and rationalize the basis for
their claims; nor may they give issues cursory treatment with little or no citation of supporting
authority.”) (Quotation marks and citation omitted.)
Regardless, respondent was not entitled to reasonable efforts because one of the
circumstances listed in MCL 712A.19a(2)—specifically subsection (2)(c)—applied to this case.
See In re Rippy, 330 Mich App 350, 355; 948 NW2d 131 (2019). That subsection provides that
reasonable efforts are not required if “[t]he parent has had rights to the child’s siblings
involuntarily terminated and the parent has failed to rectify the conditions that led to that
termination of parental rights.” MCL 712A.19a(2)(c). The record established that respondent
previously had her rights to at least one of BMH’s siblings involuntarily terminated, and that
respondent had failed to rectify the conditions that led to that termination.
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We first address respondent’s statutory-grounds argument. “To terminate parental rights,
a trial court must find by clear and convincing evidence that at least one statutory ground under
MCL 712A.19b(3) has been established.” In re Moss, 301 Mich App 76, 80; 836 NW2d 182
(2013). This Court’s reviews for clear error a trial court’s finding of a statutory ground for
termination. In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). A finding is clearly
erroneous if this Court “is left with the definite and firm conviction that a mistake has been made.”
Id. at 271 (quotation marks and citations omitted).
Under MCL 712A.19b(3)(j), a trial court may terminate parental rights if it finds by clear
and convincing evidence that there is a reasonable likelihood, based on the parent’s conduct or
capacity, that the child will be harmed if he or she is returned to the home of the parent.
The trial court did not clearly err in determining that this ground was supported by clear
and convincing evidence.4 The record suggested that respondent’s mental health disorders would
limit her ability to parent BMH. At the termination hearing, Gayden testified that respondent had
bipolar disorder and schizophrenia, that respondent was legally incapacitated, and that respondent
had a legal guardian appointed by a probate court. According to Gayden, respondent had not been
treated for her mental health disorders in about two years. Additionally, records from the Northeast
Guidance Center, which were entered into evidence, stated that respondent had been hospitalized
three times because of her mental health disorders and that her mental health disorders rendered
her unable to work. On the basis of this evidence, the trial court could reasonably infer that
respondent lacked the ability to care for a child, and, consequently, that there was a reasonable
likelihood that BMH would be harmed if placed in respondent’s care. Bolstering the trial court’s
inference was respondent’s failure to seek prenatal care until the thirty-fourth week of her
pregnancy, which would tend to suggest how respondent would care for—or more accurately, not
care for—BMH in the future if placed in respondent’s care.
Accordingly, we are not definitely and firmly convinced that the trial court made a mistake
when it found that there was a reasonable likelihood, on the basis of respondent’s conduct or
capacity, that BMH would be harmed if placed in respondent’s care. Because only one ground for
termination need be established, we decline to address whether termination was proper under the
remaining grounds found by the trial court. See In re Schadler, 315 Mich App 406, 410; 890
NW2d 676 (2016).
Next, respondent challenges the trial court’s finding that termination was in BMH’s best
interests. “[O]nce a statutory ground for termination is established, the trial court must then
determine whether termination is in the best interests of the child.” In re Moss, 301 Mich App at
86. Whether termination is in the child’s best interests must be proved by a preponderance of the
evidence. Id. at 90. This Court reviews for clear error a trial court’s finding that termination is in
a child’s best interests. In re Williams, 286 Mich App at 271.
4
We note that the trial court found statutory grounds to terminate respondent’s parental rights at
the February 2020 hearing, and thus evidence introduced at the January 2022 best-interest hearing
is not properly considered for the statutory-grounds analysis.
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“In making its best-interest determination, the trial court may consider the whole record,
including evidence introduced by any party.” In re Sanborn, ___ Mich App ___, ___; ___ NW2d
___ (2021) (Docket No. 354916); slip op at 11, quoting In re Medina, 317 Mich App 219, 237;
894 NW2d 653 (2016) (quotation marks and citation omitted). “ ‘The focus at the best-interest
stage has always been on the child, not the parent.’ ” In re Payne/Pumphrey/Fortson Minors, 311
Mich App 49, 63; 874 NW2d 205 (2015) (brackets omitted), quoting In re Moss, 301 Mich App
at 87. Some factors the trial court may consider include:
[T]he child’s bond to the parent, the parent’s parenting ability, the child’s need for
permanency, stability, and finality, . . . the advantages of a foster home over the
parent’s home, . . . the length of time the child was in care, [and] the likelihood that
the child could be returned to her parents’ home within the foreseeable future, if at
all[.] [In re Payne/Pumphrey/Fortson Minors, 311 Mich App at 63-64 (quotation
marks and citations omitted).]
The trial court may also consider the child’s age, visitation history, the child’s well-being in care,
and the possibility of adoption. In re Sanborn, ___ Mich App at ___; slip op at 11.
The trial court found that termination was in BMH’s best interests in light of evidence that
BMH lacked a bond with respondent, there were significant questions about respondent’s ability
to properly parent BMH, respondent had missed a significant number of her scheduled visits with
BMH, BMH was thriving in her foster placement, and BMH’s foster parents were willing to adopt
BMH. Ample evidence supported each of these bases.
To begin, Kelly Burdell, the foster care supervisor, explained that respondent and BMH
never spent enough time together to develop any meaningful bond—BMH had not ever been in
respondent’s care or custody, respondent had only ever had supervised visits with BMH at
petitioner’s facilities, and, in the more than two years since the termination hearing, respondent
had only attended 31 of the 95 offered visits with BMH. Burdell also testified that, at the beginning
of visits, BMH would cry and run to her foster parents. All of this evidence supported that BMH
lacked any significant bond with respondent.
Next, evidence supported that there were questions about whether respondent was capable
of properly caring for herself, which in turn raised questions about whether she could properly care
for BMH. Evidence established that when the petition was filed in October 2019, respondent had
not engaged in therapy nor taken any medication to treat her mental health issues in about two
years. By the time of the January 2022 best-interest hearing, respondent still had not sought any
treatment for her mental health issues. Respondent’s struggle to get the care she needed to address
her mental health issues reasonably raised questions about whether she would be able to care for
BMH. Moreover, as explained earlier, because of her struggles with mental illness, respondent
had been deemed legally incapacitated since June 2012, and thus, required a legal guardian, which
would tend to suggest that she was not in a position to care for BMH. At the best-interest hearing,
Monique Harper and respondent indicated that respondent no longer had a legal guardian, but
Harper testified that she still assisted respondent with grocery shopping and other activities of daily
living. This would suggest that, even without a legal guardian, respondent was still not in a
position to care for a child. Likewise, the fact that respondent missed well over half the visits with
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BMH because respondent had a headache or was too tired only underscored that respondent was
not ready to be a parent to BMH, guardian or not.
Finally, as the trial court found, the record showed the BMH was bonded with her foster
parents and had a sense of permanency and stability in their home. Burdell testified that BMH
looked to her foster parents as her actual parents. BMH’s foster parents had been meeting all
BMH’s needs, and she was bonded with them and the other children in the foster home. Burdell
also testified that the foster parents desired to adopt BMH. Considering this testimony, the trial
court reasonably concluded that removing BMH from this environment to place BMH with
respondent would not be in BMH’s best interest.
On appeal, respondent argues that the trial court clearly erred in finding by a preponderance
of the evidence that termination was in BMH’s best interest because respondent provided evidence
that she had a suitable home, a job, and a strong bond with BMH. We disagree.
Even though respondent and Harper testified that respondent had a bond with BMH, the
trial court reasonably determined that their testimony was not credible in light of Burdell’s largely
contradictory testimony. We generally defer to the trial court’s superior position to judge the
credibility of witnesses that appear before it, see In re HRC, 286 Mich App 444, 459; 781 NW2d
105 (2009), and respondent has not offered any convincing argument to deviate from this general
rule in this case.
Next, even though respondent testified that she had a suitable home and a part-time job,
the weight of the evidence suggested that respondent still lacked the ability to parent BMH for the
reasons previously explained. In other words, while respondent’s progress of obtaining a suitable
home and a part-time job is admirable, there remained significant concerns about respondent’s
ability to care for BMH if left in her care.
Altogether, the evidence showed that respondent lacked the ability to be a parent,
respondent lacked a bond with BMH, and BMH was placed in a preadoptive home with people to
whom she was bonded. Despite evidence that respondent had a suitable home and income, we are
not definitely and firmly convinced that the trial court made a mistake when it found by a
preponderance of evidence that termination was in BMH’s best interest.
Affirmed.
/s/ Kathleen Jansen
/s/ Colleen A. O’Brien
/s/ Noah P. Hood
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