in Re mann/caplinger Minors ( 2020 )

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UNPUBLISHED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 MANN/CAPLINGER, Minors. November 12, 2020
No. 352255
St. Clair Circuit Court
Family Division
LC No. 18-000412-NA
Before: O’BRIEN, P.J., and BECKERING and CAMERON, JJ.
PER CURIAM.
Respondent-mother appeals the trial court’s order terminating her parental rights to her
minor children, AM, CC, and HC, under MCL 712A.19b(3)(c)(i) (conditions that led to
adjudication continue to exist) and (g) (failure to provide proper care and custody).1 We affirm.
I. BACKGROUND
This matter began on December 13, 2018, when the trial court entered an ex parte order to
take the children into protective custody. Thereafter, on December 14, 2018, the Department of
Health and Human Services (“DHHS”) filed a petition. The petition alleged that respondent was
homeless and did not have a legal source of income, and that Child Protective Services (“CPS”)
began providing respondent with services in August 2018. After CPS assisted respondent with
locating temporary shelter at a hotel, respondent and the children entered a homeless shelter on
September 11, 2018. The petition alleged that, on December 10, 2018, law enforcement located
AM in a home that was subject to a “drug raid.” Thereafter, AM was transported to the shelter,
where respondent was located. The petition alleged that, on December 12, 2018, respondent
informed CPS that December 19, 2018 “would be her last day at the shelter” and that she did not
have housing or the financial ability to obtain housing. The petition requested that the trial court
authorize the petition and exercise jurisdiction over the children and that the children remain in the
care and custody of DHHS. After a preliminary hearing was held, the petition was authorized, and
1
The trial court also terminated the parental rights of the children’s fathers. The children’s fathers
are not parties to this appeal.
-1-
it was ordered that the children would remain in DHHS’s care and custody. Respondent was
granted supervised parenting time.
An adjudication trial was scheduled to be held on February 13, 2019. However, on the
morning of trial, petitioner moved to amend the petition. The trial court granted the motion, and
respondent admitted to the allegations in the amended petition. The trial court exercised
jurisdiction over the children and ordered petitioner to make reasonable efforts toward
reunification. Immediately after adjudication, the trial court entered an initial dispositional order,
requiring respondent to obtain suitable housing and legal income, to submit to psychological and
substance abuse evaluations, to complete random drug screenings, and to remain in contact with
the agency. The trial court also required respondent to complete a domestic violence class, a
parenting class, and “an intensive in-home service.”
Respondent’s progress with the case service plan was poor, and she failed to consistently
attend parenting time visitations. Respondent’s behavior during parenting time also concerned the
case workers. As a result, her parenting time was suspended in October 2019. In November 2019,
petitioner filed a supplemental petition, requesting that the trial court terminate respondent’s
parental rights to the children under MCL 712A.19b(3)(c)(i) and (g). The termination hearing was
held on December 11, 2019. Case workers testified about respondent’s poor progress during the
proceeding, and respondent testified on her own behalf. After the close of proofs, the trial court
found that reasonable reunification efforts were made but that respondent had failed to take
advantage of the services. The trial court also concluded that statutory grounds existed to support
the termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (g) and that
termination of respondent’s parental rights was in the children’s best interests. This appeal
followed.
II. ANALYSIS
A. STATUTORY GROUNDS
Respondent argues that the trial court clearly erred by finding clear and convincing
evidence supporting the statutory grounds cited in support of termination. We find no clear error
warranting reversal.
“In order to terminate parental rights, the trial court must find by clear and convincing
evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been
met.” In re VanDalen, 293 Mich. App. 120, 139; 809 NW2d 412 (2011). A finding is clearly
erroneous if, although there was evidence to support it, this Court is left with a definite and firm
conviction that a mistake was made. In re Mason, 486 Mich. 142, 152; 782 NW2d 747 (2010). To
be clearly erroneous, a decision must be more than maybe wrong or probably wrong. In re Sours
Minors, 459 Mich. 624, 633; 593 NW2d 520 (1999).
We conclude that the trial court did not clearly err by finding that a ground for terminating
respondent’s parental rights to the minor children was established under MCL 712A.19b(3)(g).
MCL 712A.19b(3)(g) authorizes termination under the following circumstances:
The parent, although, in the court’s discretion, financially able to do so, fails
to provide proper care or custody for the child[ren] and there is no reasonable
-2-
expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child[ren]’s age[s].
Our Supreme Court has held that “a parent’s failure to comply with the parent-agency
agreement is evidence of a parent’s failure to provide proper care and custody[.]” In re JK, 468
Mich. 202, 214; 661 NW2d 216 (2003).
In this case, the record is replete with evidence that respondent failed to comply with and
benefit from the case service plan. Respondent never provided paperwork to establish that she had
obtained legal income during the course of the proceeding. This was the case even though
respondent maintained that she sold antiques, collectibles, and jewelry online and that she had
obtained a part-time job “auto detailing.” Although respondent obtained housing during the
proceeding, the home was not suitable for the children. Respondent acknowledged at the
termination hearing that she did not have enough beds for the children. One of the case workers
observed the home to be “cluttered” and in “disarray,” with “dirty dishes, clothing, numerous items
all over, [and] old food.” Importantly, on one occasion, marijuana and marijuana paraphernalia
were seen on the coffee table in the living room. Respondent left the marijuana in plain sight
despite knowing that the case worker was coming to view her home. While respondent argues on
appeal that she had a valid medical marijuana card, she failed to establish during the proceeding
that she did not have an issue with substance abuse. Indeed, although respondent was diagnosed
with alcohol and cannabis dependency during the proceeding, she never participated in treatment
and did not submit to any drug screenings. Respondent acknowledged at the termination hearing
that she was prescribed Ativan, but that she had failed to consult with her doctor about the possible
side effects of combining Ativan and marijuana.
Furthermore, although respondent submitted to the required psychological evaluation
during the proceeding, she did so very late in the proceeding and never participated in counseling
to treat her generalized anxiety disorder. This was problematic because it was believed that
respondent used alcohol and marijuana in an effort to “self-medicate” and that her failure to
address this would be harmful to the children’s well-being. Respondent also failed to consistently
attend parenting time, which impacted the children’s behavior and AM’s mental health. When
respondent did attend parenting time, she would sometimes encourage the children to misbehave
in their placements and would sometimes rely on technology instead of interacting with the
children. Respondent also called AM selfish and blamed AM for making her life “more difficult”
as a result of his desire to spend one-on-one time with her.
AM required mental health treatment during the proceeding, and he suffered from physical
health issues such as headaches and enuresis. At certain times during the proceeding, AM’s
treatment was delayed as a result of respondent’s failure to provide consent for medical testing and
medication. Additionally, record evidence supports that CC and HC viewed respondent as a
playmate as opposed to a parent. Although respondent could have benefitted from participating in
a parenting skills class, respondent failed to complete her required parenting class. Respondent’s
intensive in-home services, which were designed to assist her with building appropriate parenting
skills and establishing stability, were terminated twice because of respondent’s noncompliance.
The domestic violence class was never initiated—much less completed—because of respondent’s
failure to complete her parenting class.
-3-
Respondent also failed to remain in contact with the case workers during the proceeding
even though she was required to do so. Evidence at the termination hearing supports that
respondent would change her telephone number on a frequent basis but would not inform the case
workers of the changes. Respondent entirely stopped responding to telephone calls and text
messages in mid-October 2019, and respondent testified that she had changed her telephone
number three days before the termination hearing without updating the current caseworker.
Although respondent claimed that her cellular telephone often did not operate properly, she failed
to rectify this issue during the proceeding. Indeed, there is no indication that respondent was
unable to use technology given her testimony that she utilized Wi-Fi and Facebook to operate her
business. Thus, the record establishes that, although respondent was “financially able to do so,”
she was unable to provide proper care and custody at the time of termination.
Furthermore, there is no evidence that respondent would have been able to provide proper
care and custody within a reasonable time given the ages of the children. Respondent demonstrated
a lack of commitment during the proceeding and did not take responsibility for the children being
taken into care. Given the lack of evidence that respondent would comply with the case service
plan, would consistently attend visitations with the children, would establish that she had obtained
legal income, and would treat her substance abuse and mental health issues, it is unlikely that she
would do so within a reasonable time. At the time of termination, 9-year-old AM was experiencing
physical and mental health issues. CC, who was 3-1/2 years old, and HM, who was nearly 2-1/2
years old, had spent almost 12 months of their young lives in care. Because the children required
consistency and permanency, we conclude that the trial court’s finding that termination of
respondent’s parental rights was proper under MCL 712A.19b(3)(g) was not clearly erroneous.
Because we have concluded that at least one ground for termination existed, we need not
specifically consider the additional ground upon which the trial court based its decision. In re
HRC, 286 Mich. App. 444, 461; 781 NW2d 105 (2009). Nevertheless, we have reviewed that
ground and conclude that termination was also appropriate under MCL 712A.19b(3)(c)(i).
In reaching this conclusion, we note that respondent argues that petitioner was aware of
the fact that she did not have transportation. To the extent that respondent argues that reasonable
efforts toward reunification were not made, this issue is unpreserved, In re Frey, 297 Mich. App.
242, 247; 824 NW2d 569 (2012), and our review is limited to plain error affecting respondent’s
substantial rights, People v Randolph, 502 Mich. 1, 10; 917 NW2d 249 (2018).
Although respondent did not have a vehicle and was expected to use the bus system during
the proceeding, testimony at the termination hearing supports that respondent was offered in-home
services. Specifically, a mental health professional went to respondent’s home to perform the
psychological and substance abuse evaluations, and respondent was provided intensive in-home
services to assist her with parenting and organizational skills. The in-home services were also
intended to assist respondent with her issue with “chronic homelessness” and with understanding
the effects of substance abuse and domestic violence. Nonetheless, respondent was terminated
from two in-home services because of her noncompliance. Importantly, respondent testified that
she was able to go to Kroger and to the mall on a regular basis, and that she also met with customers
who wanted to purchase the items that respondent sold. In order to accomplish this, respondent
secured rides from third parties and utilized the bus system. Importantly, respondent agreed that
she could have ridden a bicycle to get to her appointments during the proceeding.
-4-
Thus, the evidence supports that respondent’s failure to participate in services was not the
result of her lack of transportation. Rather, it was the result of respondent’s lack of commitment
during the proceeding. Given that respondent failed to uphold her “commensurate responsibility”
to engage in and benefit from the services offered by petitioner, see In re Frey, 297 Mich. App. at
248, we are not persuaded that she would have fared better if petitioner had offered other services,
such as transportation services, see In re Fried, 266 Mich. App. 535, 543; 702 NW2d 192 (2005).
We conclude that the trial court did not commit plain error affecting respondent’s substantial rights
when it determined that petitioner made reasonable efforts to promote reunification.
B. BEST INTERESTS
Respondent argues that the trial court clearly erred by finding that termination of her
parental rights was in the children’s best interests. We disagree.
“The trial court must order the parent’s rights terminated if the Department has established
a statutory ground for termination by clear and convincing evidence and it finds from a
preponderance of the evidence on the whole record that termination is in the children’s best
interests.” In re White, 303 Mich. App. 701, 713; 846 NW2d 61 (2014). We review the trial court’s
best-interest determination for clear error. Id.
This Court focuses on the children—not the parents—when reviewing best interests. In re
Trejo Minors, 462 Mich. 341, 356; 612 NW2d 407 (2000). “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 court should consider a wide variety of factors that may include 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. The trial court may also consider . . . 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. [In re White,
303 Mich. App. at 713-714 (quotation marks and citations omitted).]
Although the record supports that respondent was bonded with the children at times, the
record also supports that respondent was inconsistent with attending visitations. When respondent
did attend visitations, she was inappropriate at times, relied on technology to entertain the children,
and was never able to have unsupervised parenting time. Respondent also had difficulty managing
all of the children at once, which resulted in AM requesting individual parenting time with
respondent. Importantly, respondent called AM selfish for wanting to have one-on-one time with
her and would blame AM for her difficulties. Respondent’s inappropriate behavior toward the
children affected their behavior and continued despite warnings from one of the case workers that
the behavior was harmful to the children. Respondent’s parenting time was ultimately suspended
in October 2019, and it never resumed. At the time of termination, the children had not seen
respondent in over two months, and their behavior had improved. AM was “very angry and upset
with” respondent, and CC and HC viewed respondent as a “playmate as opposed to . . . a mother.”
None of the children asked the case worker about respondent in the weeks leading up to
-5-
termination. Thus, to the extent that respondent shared a bond with the children at the time of
termination, the record supports that the bond was not healthy for the children. See In re CR, 250
Mich. App. 185, 196-197; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495
Mich. 394 (2014).
Additionally, the parent-child bond is only one factor for the trial court to consider. See In
re Olive/Metts, 297 Mich. App. 35, 41-42; 823 NW2d 144 (2012). As already discussed at length,
respondent failed to comply with the case service plan, and testimony supported that respondent
“struggle[d] with her interactions with the children and being able to parent all of them.”
Respondent consistently demonstrated a lack of commitment, an inability or unwillingness to
accept responsibility, and an inability to provide stability and permanency to the children.
Meanwhile, the children were doing well in their respective placements, where they had the
opportunity to obtain permanency. According to one of the case workers, the children’s
placements provided “the stability . . . that they desperately need[ed],” as well as food, clothing,
and other basic necessities. AM’s foster parents were ensuring that AM’s medical needs and
mental health needs were being addressed. The record supports that AM was bonded to his foster
parents and that CC and HC were bonded with the paternal relatives with whom they were placed.
For these reasons, we conclude that the trial court did not clearly err by finding that termination of
respondent’s parental rights to the minor children was in the children’s best interests.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Jane M. Beckering
/s/ Thomas C. Cameron
-6-