in Re Kimmel Minors ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re KIMMEL, Minors. January 12, 2017
No. 333523
St. Clair Circuit Court
Family Division
LC No. 14-000278-NA
Before: BOONSTRA, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Respondent appeals as of right an order terminating his parental rights to the two minor
children under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g)
(parent failed to provide proper care or custody), and (j) (reasonable likelihood child will be
harmed if returned to parent). We affirm.
Defendant was incarcerated at the time the children came into care following a domestic
violence dispute between their mother and her boyfriend.
Respondent argues that the trial court clearly erred when it found clear and convincing
evidence to terminate his parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). We
disagree.
“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). A trial court’s findings of fact are clearly erroneous if “we are definitely
and firmly convinced that it made a mistake.” Id. at 709-710.
In a termination proceeding, petitioner has the burden of proving at least one statutory
ground for termination by clear and convincing evidence. In re Ellis, 294 Mich. App. 30, 32; 817
NW2d 111 (2011). And in this case, termination of respondent’s parental rights was proper
under MCL 712A.19b(3)(c)(i), which provides that a parent’s rights may be terminated if “182
or more days have elapsed since the issuance of an initial dispositional order” and “[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.”
It is undisputed that the order terminating respondent’s parental rights was entered more
than 182 days after the initial dispositional order was entered. The conditions that led to this
adjudication were respondent’s continued issues with substance abuse that led to his
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incarceration, irregular contact with the children, and the lack of a parental bond with them. The
record shows that these conditions did not change. During the pendency of this case, respondent
was released from jail on probation. He was required to participate in an outpatient substance
abuse program, but was terminated from the program after submitting a “diluted drug screen”
and missing a class. He was then transferred to a residential substance abuse program, where he
continued to test positive for cocaine, opiates, and THC, before he left the facility. During this
time, parenting-time sessions were scheduled and, other than attending one, respondent missed
them all—without even calling to cancel or explain. At the one visit, respondent and the children
did not show a parent-child bond. In fact, the children called respondent by his nickname,
“Stewie.” Subsequently, respondent was jailed for violating the terms of his probation. At the
time of the termination hearing, respondent was still incarcerated, without an anticipated release
date. And respondent testified that he still suffered from issues arising out of substance abuse so,
at the very least, he would still need counseling for that issue once he was released.
Further, there was no reasonable likelihood that the conditions that led to the adjudication
would be rectified within a reasonable time considering the children’s age. MCL
712A.19b(3)(c)(i). The children were five years old at the time of the termination proceedings,
and had been under the guardianship of their aunt for about 1½ years. The trial court noted that
this was approximately one-third of the children’s lives without contact with respondent.
Further, the evidence showed that respondent would be unlikely to remedy his issues in a
reasonable time. Even when respondent was released from jail during these proceedings, he
showed no intent or ability to avoid substance abuse and to form a meaningful bond with the
children. Specifically, after his release, respondent almost immediately started abusing drugs
again, testing positive for cocaine, opiates, and THC. He showed no intent to develop a bond
with the children, skipping all but one scheduled parenting-time session, and made no other
effort to reach out to them by sending gifts, cards, or anything of the like. In summary, clear and
convincing evidence supported termination of respondent’s parental rights under MCL
712A.19b(3)(c)(i).
Because only one statutory ground must be established by clear and convincing evidence,
In re Ellis, 294 Mich. App. at 32, we need not address whether the trial court clearly erred in
finding that MCL 712A.19b(3)(g) and (j) were also established; nevertheless, we conclude that
the trial court did not clearly err. In brief, respondent never provided proper care or custody for
the children and there was no reasonable expectation that he would be able to within a reasonable
time considering their ages. See MCL 712A.19b(3)(g). Respondent provided no monetary
support except for two or three child support payments shortly after their births and there was no
evidence that he had any ability to provide full-time care. There was no evidence that he had
money, housing, or parenting skills. He did not even write to the children or buy gifts for their
birthdays. And when respondent had the chance to be a father after being released from jail, he
instead abused drugs and was returned to jail within a few months of being released.
Further, as the trial court held, there was a reasonable likelihood, based on respondent’s
conduct, that the children would be harmed if returned to him. See MCL 712A.19b(3)(j). The
record evidence included that respondent allowed his other children to remain in his home with a
loaded weapon and drugs. Furthermore, respondent, upon being released after that crime,
showed no indication that he would change his ways. Instead, respondent almost immediately
began using drugs again, was terminated from his substance abuse program, and was eventually
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arrested and jailed again for violating probation. Indeed, testimony from respondent’s own sister
revealed that she was concerned for the welfare of any children under respondent’s custody
given his actions with respect to his other children.
Respondent argues that none of the statutory grounds were established by clear and
convincing evidence because the trial court relied solely upon the fact that he was incarcerated.
For this argument, respondent relies on our Supreme Court’s decision in In re Mason, 486 Mich.
142; 782 NW2d 747 (2010). In that case, our Supreme Court held that “[t]he state is not relieved
of its duties to engage an absent parent merely because that parent is incarcerated.” Id. at 152.
Respondent’s argument is without merit. In Mason, the respondent-father was only permitted to
participate in two of the hearings via telephone from prison. Id. at 153. And there was a 16-
month gap between the first hearing and the second hearing. Id. at 155. The Mason Court
reasoned that the respondent-father “missed the crucial, year-long review period during which
the court was called upon to evaluate the parents’ efforts and decide whether reunification of the
children with their parents could be achieved. Indeed, respondent was practically excluded from
almost every element of the review process[.]” Id. Furthermore, at the termination hearing, the
DHHS caseworker admitted that he had never even spoken to the respondent-father, but still
determined that termination would be best for the minor children. Id. at 150, 159. Given these
facts, the Court determined that the termination of the respondent-father’s parental rights was
premature, because he had not been given the opportunity to participate and be properly
evaluated. Id. at 159.
In this case, however, respondent fully participated in the proceedings. From the
beginning of the proceedings, the trial court expressed concern regarding respondent’s
incarceration. During the initial adjudication proceeding, the trial court adjourned respondent’s
portion because he was not in attendance from jail and had not yet had an attorney appointed.
Only after respondent was able to participate by telephone and discuss the situation with his
attorney was respondent permitted to consent to jurisdiction. Further, respondent was present via
telephone for every hearing that took place regarding the children. Additionally, the trial court
entered a writ of habeas corpus so that respondent could appear in person for the termination
proceedings. With regards to contact by DHHS with respondent, a DHHS caseworker testified
that she sent monthly letters to respondent regarding what courses and classes he should engage
in while in prison. Further, the record reveals that DHHS caseworkers and respondent discussed
the need for him to complete courses while in prison to exhibit his continued efforts to becoming
a suitable parent. Indeed, at least once on the record, respondent clearly stated that he
understood what DHHS was recommending he complete. As can plainly be seen from this
factual scenario, respondent was not treated in the same manner as the respondent-father in In re
Mason; therefore, respondent’s reliance on this case is misplaced.
Respondent also argues that it was not in the best interests of the children to terminate his
parental rights. Again, we disagree.
This Court reviews a trial court’s determination regarding the children’s best interests for
clear error. In re White, 303 Mich. App. at 713. A decision is clearly erroneous if, although there
is evidence to support it, we are left with a definite and firm conviction that a mistake has been
made. In re Mason, 486 Mich. at 152 (citation omitted).
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A trial court must order termination of parental rights if a statutory ground for
termination is established by clear and convincing evidence and the court finds by a
preponderance of the evidence that termination is in the children’s best interests. In re Moss, 301
Mich. App. 76, 90; 836 NW2d 182 (2013). At the best-interest stage, the focus is on the child, not
the parent. Id. at 87. In making the best-interests determination, the court may consider a
number of different factors, such as the parent’s history, parenting ability, and participation in a
treatment program, the children’s ages and bond to the parent, as well as the length of time the
children were in care and their need for permanency, stability, and finality. See In re Olive/Metts
Minors, 297 Mich. App. 35, 41-42; 823 NW2d 144 (2012); In re VanDalen, 293 Mich. App. 120,
141-142; 809 NW2d 412 (2011). In addition, placement with a relative weighs against
termination under MCL 712A.19a(6)(a). Indeed, “the fact that the children are in the care of a
relative at the time of the termination hearing is an ‘explicit factor to consider in determining
whether termination was in the children’s best interests.’ ” In re Olive/Metts Minors, 297 Mich
App at 43, quoting Mason, 486 Mich. at 164.
In making its determination, the trial court relied on the facts that respondent did not have
a parental bond with the children, the children needed stability and structure in their lives, and
respondent did not provide that with his incarceration, substance abuse, and the uncertainty
associated with those problems. Those determinations were particularly supported by
respondent’s actions when he was released from jail. Rather than engage with the children and
form a bond with them, respondent relapsed into abusing drugs and avoiding interaction with the
children. Further, respondent made no attempts to provide care or custody for the children
during that time, nor did he do so before his incarceration, when he failed to provide financial
support. The lack of bond between respondent and the children was also exhibited by evidence
that showed that the children did not refer to respondent as their father. Rather, they considered
their mother’s boyfriend to be a father figure, and respondent to be “Stewie.”
At the time of the hearing, the children had been placed with an aunt for 1½ years. It was
undisputed that they had formed a bond with her over that time period and had only seen
respondent one time, in November of 2014. While the trial court recognized that the children
were residing with a relative, it also relied on her testimony that continued guardianship would
not be in the children’s best interests because they deserved a chance for stability in their living
situation. As such, despite the children’s guardianship with a relative weighing against
termination pursuant to MCL 712A.19a(6)(a), the trial court properly determined that a
continued guardianship would not be in the children’s best interests. Given these facts, the
preponderance of the evidence established that the children would be best served by terminating
respondent’s parental rights. As the trial court noted, they would be available for adoption, given
that mother’s rights were already terminated, which was more likely to lead to a healthy, stable
situation. Testimony from a DHHS caseworker revealed that the children needed that stability,
and did not benefit from the uncertainty of respondent’s presence in their life. For all of these
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reasons, the trial court did not clearly err in determining that it was in the children’s best interests
to terminate respondent’s parental rights.
Affirmed.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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