In Re Allen Minors ( 2023 )

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UNPUBLISHED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 ALLEN Minors. March 23, 2023
No. 362165
Ingham Circuit Court
Family Division
LC Nos. 21-000491-NA and
21-000492-NA
Before: GADOLA, P.J., and GARRETT and FEENEY, JJ.
PER CURIAM.
Respondent-mother (respondent) appeals as of right the order of the family division of the
circuit court terminating her parental rights to her two minor children under
MCL712A.19b(3)(c)(i) (conditions of adjudication continue to exist), (g) (failure to provide proper
care or custody), and (j) (likelihood of harm if returned). Respondent argues that the court erred in
concluding that the statutory bases for termination were proved by clear and convincing evidence.
Respondent also appeals the order denying her motion for rehearing or reconsideration based on a
claim of ineffective assistance of counsel. We affirm.
I. STANDARDS OF REVIEW
This Court reviews for clear error a finding that a statutory ground for termination
has been proved by clear and convincing evidence. MCR 3.977(K); In re White, 303 Mich
App 701, 709-710; 846 NW2d 61 (2014). To be clearly erroneous, a finding must be
more than possibly, or even probably, wrong: “A decision qualifies as clearly erroneous
when, although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been made.” In re Williams,
286 Mich App 253, 271; 779 NW2d 286 (2009) (quotation marks and citation omitted);
In re Dearmon, 303 Mich app 684, 700; 847 NW2d 514 (2014). This Court also reviews
the trial court’s finding regarding best interests for clear error. In re Schadler, 315 Mich
App 406, 408; 890 NW2d 676 (2016).
This Court reviews a trial court’s decision on a motion for reconsideration for an abuse of
discretion. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). “An abuse
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of discretion occurs when the probate court chooses an outcome outside the range of reasonable
and principled outcomes.” In re Portus, 325 Mich App 374, 381; 926 NW2d 33 (2018) (quotation
marks and citation omitted). Questions of law bearing on the trial court’s decision are reviewed
de novo. In re Ferranti, 504 Mich 1, 14; 934 NW2d 610, 616 (2019).
II. STATUTORY GROUNDS
The trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3),
which states in pertinent part as follows:
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:
* * *
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds either of the following:
(i) The 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.
* * *
(g) The 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.
* * *
(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.
The trial court need only find that one statutory ground has been proved to support
termination of parental rights. In re Moss, 301 Mich App 76, 83; 836 NW2d 182 (2013).
Child protective proceedings are a single continuous action. In re LaFlure, 48 Mich App
377, 391; 210 NW2d 482 (1973). Therefore, evidence admitted at any one hearing is to be
considered evidence in all subsequent hearings. Here, the trial court stated on the record that is
had carefully reviewed the entire record, which included periodic caseworker reports, a
psychological evaluation, substance-abuse assessments, and findings from five review hearings.
III. FACTUAL FINDINGS
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The trial court did not clearly err in terminating respondent’s parental rights pursuant to
MCL 712A.19b(3)(c)(i). In June 2021, the children were removed from respondent’s custody and
care because the newborn child tested positive for methamphetamine, cocaine, opiods and ecstasy
shortly after birth and exhibited signs of severe drug withdrawal; mother denied that the baby
experiencd drug withdrawal, however. At the July 7, 2021 adjudication proceeding, the trial court
assumed jurisdiction over the children after respondent admitted to an amended petition alleging
that she had a history of substance abuse, declined offered mental-health and substance-abuse
treatment, had a presumptive positive drug screen for illicit drugs while pregnant with her younger
child, and had denied the baby’s drug withdrawal symptoms. At the July 27, 2021 dispositional
hearing, petitioner was ordered to make reasonable family reunification efforts, and respondent
was ordered to comply with her parent-agency agreement including not possessing or using any
illegal substances, providing random drug screens, attending Alcoholics Anonymous or Narcotics
Anonymous meetings at least twice per week, attending supervised parenting time, and, signing
any releases of information as requested by case workers.
At the termination hearing, the assigned foster care specialist testified that respondent’s
substance abuse was the primary reason that led to the court’s intervention, but respondent’s
mental health had also been an ongoing concern. Petitioner made numerous referrals, including
for a psychological evaluation, substance-abuse assessments, and six substance-abuse treatment
programs. Unfortunately, respondent failed to complete or comply with the service providers’
treatment recommendations.
During her psychological evaluation, respondent reported that heroin was her drug of
choice from the age of 19 until 26. She was incarcerated for 13 months for possession of heroin
and analogs and then was sober for four years. She had previously participated in three substance-
abuse treatment programs. The psychological evaluator’s diagnoses included a “high probability”
of substance-use disorders, along with mixed-personality disorder, and adjustment disorder with
mixed anxiety and depressed mood.
Respondent completed her first substance abuse assessment but was unwilling to
participant in the recommended inpatient treatment program. The assessment clinician noted that
respondent had “no recognition” of addiction and believed she could “just stop anytime.”
Respondent was driven to an inpatient detoxification program but left 12 hours before completing
the process. Respondent completed a second substance abuse assessment and initially engaged in
services but was discharged because she missed appointments and had positive drug screens.
Respondent was discharged from another substance-abuse program because she was reportedly
tampering with her drug screens. In February 2022, respondent completed the first 13 days of the
Sacred Heart residential detoxification program, but she was subsequently asked to leave the
program. Respondent reported that she had engaged in various substance abuse services, but she
would not sign the releases necessary for caseworkers to verify her participation and monitor her
progress. The foster care worker testified that respondent had a pattern of starting and stopping
various treatment programs which were ineffective in helping respondent overcome her significant
substance abuse issues. Also, respondent did not consistently engage in individually therapy or
regularly attend weekly AA/NA meetings
The trial court found clear and convincing evidence that respondent did not comply with
or benefit from her treatment plan and remained unable to achieve sobriety. The foster care worker
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testified that respondent did not benefit from any of the provided services. For more than 182
days, she continued to test positive for illicit drugs: March 23 and March 30, 2022, for fentanyl;
April 18, 2022, for methamphetamine and methadone; April 20, 2022, just before the April 25,
2022 termination hearing, for methamphetamine, methadone, cocaine and fentanyl.1
In addition to her substance abuse issues, there was ample evidence that respondent
continued to struggle with emotional stability and parenting skills. Dr Randall Haugen performed
respondent’s psychological evaluation and testified at the termination hearing. He reported that,
although there was “no direct evidence that she will become physically abusive in a parenting
situation,” respondent was nonetheless “prone to become preoccupied in her own affairs which
can lead to inconsistencies in the delivery of care as well as difficulties maintaining supervision
and a structured household.” Dr. Haugen further reported that clinical testing revealed
respondent’s sense of poor self-worth, significant levels of anxiety and feelings of inadequacy,
impulsivity, irresponsibility, cynical attitude regarding the motivation of others, and “little to no
regard for the wellbeing of others.” Further, she was resistant to sources of external control or
influence, had a low frustration tolerance, lacked appropriate boundaries, and had poor decision-
making skills. Dr. Haugen also testified that respondent’s participation in multiple substance
abuse treatment programs “lowered the prognosis of success if you have a lot of switching going
on.”
The record indicates that although respondent could engage well with the children during
supervised parenting time, respondent was distracted, particularly by her electronic devices, did
not understand proper feeding needs for the children including food hygiene, and made
inappropriate statements to the children about the foster parents and the agency. The foster care
worker and the parent-support coach testified that respondent was making progress with her
parenting services, but that those services ended prematurely when she voluntarily entered a
residential treatment program on January 27, 2022 and completed it on February 8, 2022. When
parenting time resumed, respondent sometimes fell asleep, and, in one instance, did so while
holding one of the children as he began to fall out of her lap. In March 2022, parenting time was
shortened from two-hour to one-hour sessions because respondent’s lethargy created a safety
concern for the children; it was unclear whether the lethargy was due to methadone or illicit drug
use. Respondent often arrived late for the one-hour sessions and during this time she was testing
positive for drugs. As the trial court noted, respondent’s parenting skills never improved to a level
that would allow unsupervised parenting time
We hold that the trial court did not clearly err in concluding that the conditions that led the
adjudication continued to exist and there was no reasonable likelihood that respondent would
rectify her substance abuse, mental health, and parenting issues within a reasonable time
considering the children’s ages. The trial court was justifiably unpersuaded by respondent’s
request to be given six more months to benefit from services, explaining, “She’s had almost a year
and the permanency planning hearing was her notice. That’s when her six-month window started
for do it and do it right if you want your children. Well, that didn’t happen.” Citing Dr. Haugen’s
testimony, the trial court noted that respondent would need at least six to nine months of sobriety,
1
These positive screens came after the one negative screen from Sacred Heart in February 2022.
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stable housing and income, and access to a healthy support network before any further reunifica-
tion efforts might be in order. Further, Dr. Haugen testified that relapse was common, that
respondent needed significant substance use interventions, but the record showed that respondent,
at best, was just beginning her long path of recovery. The foster care worker opined that, in light
of respondent’s lack of progress in the previous ten months, it was unlikely that respondent would
be successful with additional services. Respondent’s renewed argument on appeal, for additional
time to achieve sobriety, remains unpersuasive.
“Having concluded that at least one ground for termination existed, we need not consider
the additional grounds upon which the trial court based its decision. See In re Jenks, 281 Mich
App 514, 518 n 3; 760 NW2d 297 (2008).” In re HRC, 286 Mich App 444, 461; 781 NW2d 105(2009). Accordingly, we find that the trial court did not err in finding at least one statutory ground
supported termination.
IV. BEST INTERESTS
We need not consider respondent-mother’s challenges to the court’s best-interest deter-
mination, because no such challenge is included in her statement of the questions presented. See
MCR 7.212(C)(5); Meagher v McNeely & Lincoln, Inc, 212 Mich App 154, 156; 536 NW2d 851(1995). Nevertheless, we find her arguments unpersuasive.
“If the court finds that there are grounds for termination of parental rights and that
termination of parental rights is in the child’s best interests, the court shall order termina-
tion of parental rights and order that additional efforts for reunification of the child with
the parent not be made.” MCL 712A.19b(5). The focus of the best-interest inquiry is on
the child, not the parent. In re Moss, 301 Mich App at 87. The trial court may consider
various factors when making its best-interest determination, including the child’s bond to
the parent, In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012),
the parent’s parenting ability, In re Jones, 286 Mich App 126, 129-130; 777 NW2d 728(2009), the child’s need for permanency, stability, and finality, In re Van Dalen, 293 Mich
App 120, 141-142; 809 NW2d 412 (2001), and the advantages of a foster home over the
parent’s home, In re Foster, 285 Mich App 630, 634-635, 776 NW2d 415 (2009). “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 714.
In this case, there was abundant evidence to support the trial court’s determination that it
was in the children’s best interests to terminate respondent’s parental rights. Respondent’s
continued substance abuse, failure to comply with referrals to address her emotional instability,
and her lack of economic or housing stability, despite referrals made as part of her case service
plan, were noted on the record. Contrary to respondent’s assertions, the trial court considered
respondent’s bond with her children, and reasonably concluded that respondent had a tenuous bond
with the older child, and a very limited bond with the younger one who was out of respondent’s
care for his entire life. The older child was removed from respondent’s care when he was about
14 months old, and the younger one was never in respondent-mother’s custody or care. During
the proceedings below, the children interacted with respondent-mother for only one or two hours
of supervised parenting time per week. The trial court reasonably concluded that the younger child
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had a stronger bond with his foster parent, who had cared for him since he was discharged from
the hospital two weeks after his birth.
The foster care worker reported that the children were initially placed with their maternal
grandfather, but he passed away about three months later. The older child was then placed with
his maternal great-grandmother, who supported family reunification, and the younger child was
placed with his maternal aunt, who favored permanent placement and adoption because of
respondent’s long substance abuse history. The children were not placed together because of their
respective special needs. The foster care worker opined that it was not in the children’s best
interests to be returned to respondent’s care and that the children needed permanence and finality.
The two relatives were willing to adopt the brothers and could appropriately meet the children’s
needs. The trial court considered the children’s relative placements but found that permanency was
in the boys’ best interests.
The trial court thus properly concluded that each of the children, given their very young
ages, needed stability and finality which could be achieved only by adoption, and that termination
of respondent’s parental rights was in their best interests. In re Olive/Metts Minors, 297 Mich App
at 41-43.
V. ASSISTANCE OF COUNSEL
Respondent also claims that she did not receive effective assistance of counsel during the
termination proceeding. We disagree.
Respondent’s claim that she did not receive effective counsel is preserved because she
timely filed a motion for reconsideration in the trial court pursuant to MCR 2.119(F) on the
grounds that her attorney did not present certain documents or witnesses that would have
strengthened her position. The trial court denied the motion on the ground that respondent’s
attorney was asked whether he had any proofs after the close of petitioner’s proofs, and replied,
“No further proofs, your Honor.” On appeal, respondent raises, for the first time, specific
allegations regarding evidence that trial counsel failed to introduce, including a witness he did not
call, as bases for her claim of ineffective counsel. For a preserved issue, a “party is generally free
to make a more sophisticated or fully-developed argument on appeal than was made in the trial
court.” Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020).
Respondent’s claim is not entirely novel, and we will regard her efforts on appeal as a more fully
developed argument relating to her motion for reconsideration.
It is well established that a parent involved in a parental rights termination proceeding has
the right to appointed, and reasonably effective, counsel. In re Simon, 171 Mich App 443, 447;
431 NW2d 71(1988), citing Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976). See
also MCL 712A.17c(4); MCR 3.915(B)(1)(b). The principles for analyzing claims of ineffective
assistance of counsel in the criminal law context apply in parental rights termination proceedings.
In re Simon, 171 Mich App at 447; In re Williams, 286 Mich App 253, 275-276; 779 NW2d 286(2009); MCL 712A.17c(4); MCR 3.915(B)(1)(b). In order to prevail on a claim of ineffective
assistance, a parent must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and that there is a reasonable probability that,
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but for counsel’s errors, the result of the proceedings would have been different. People v
Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
The existing record does not indicate that respondent’s counsel’s performance fell below
an objective standard of reasonableness under prevailing professional norms. Although
respondent’s attorney chose not to introduce additional proofs at the termination hearing, he did
review exhibits and cross-examine all of petitioner’s witnesses. And we find respondent’s
argument that her trial attorney should have introduced certain evidence unpersuasive because the
documents she now presents have limited relevancy and the other evidence was already in the
record.
Respondent argues that counsel erred in failing to move for admission of a February 8,
2022 letter from Sacred Heart Clearview Women’s Specialty Center. But the trial court was aware
that respondent had participated in services at Sacred Heart from January 27 to February 8, 2022,
as noted it its February 17, 2022 Order After Review Hearing. Similarly, evidence of one negative
drug screen, on February 6, 2022, would have carried little probative weight in light of several
positive drug screens in March and April 2022. Favorable evidence regarding respondent’s
parenting, including bonds with the children, as contained in the supportive visitation reports, was
summarized in petitioner’s updated service-plan reports that were reviewed at the periodic review
hearings. Therefore, the reports respondent now highlights were already in the evidence and
would be considered cumulative evidence.
Further, whether a caseworker was biased against respondent because of a filed grievance
was of little evidentiary value. Respondent is not challenging petitioner’s reasonable family
reunification efforts, which leaves any issue of a caseworker’s bias of marginal significance.
Further, nothing in the record indicates that the foster care worker, or other caseworkers, treated
respondent unfairly. Respondent’s parenting time was reduced from two hours to one in March
2022 due to respondent’s lethargy while parenting, which created safety issues for the children,
and she often arrived late for those one-hour sessions. Alleged caseworker bias had no bearing on
respondent’s unwillingness or inability to achieve or maintain sobriety and emotional stability,
which were the lynchpins of this case.
Respondent’s attorney’s decision not to call any witnesses was also reasonable under
prevailing professional norms. Parents often do not testify at termination hearings, and the record
shows that respondent’s attorney fully availed himself of the opportunity to cross-examine all of
petitioner’s witnesses. Respondent’s attorney requested, and was granted, a brief recess after the
close of petitioner’s proofs so that he could confer with respondent, presumably to discuss whether
she should testify. This was a matter of trial strategy. See People v Russell, 297 Mich App 707,
716; 825 NW2d 623 (2012) (“This Court does not second-guess counsel on matters of trial
strategy, nor does it assess counsel’s competence with the benefit of hindsight.”).
We further conclude that there was no reasonable probability that the outcome would have
been different if the documents that respondent presents were admitted into evidence or if
respondent had testified. Respondent’s offered proof of completing a 13-day detoxification
program through Sacred Heart on February 8, 2022 was or could be weighed against her
subsequent positive drug screens. The trial court reasonably concluded that whether respondent
had completed any programs could not counter her positive drug screens just days before the
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termination hearing; respondent’s continued abuse of substances clearly showed that she had not
benefited from services to address her longstanding drug addiction. Similarly, possible testimony
regarding respondent’s intentions, motivations, and efforts to conquer her drug addiction, or her
love of her children, would not overcome the abundant evidence at the termination trial that she
could not achieve, much less maintain, sobriety within a reasonable time given that these young
children should not wait indefinitely for her rehabilitation. Accordingly, we find that respondent’s
counsel was not ineffective, and the trial court’s decision to terminate respondent’s parental rights
was based on clear and convincing evidence.
Affirmed.
/s/ Michael F. Gadola
/s/ Kristina Robinson Garrett
/s/ Kathleen A. Feeney
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