In Re brown/mccovery 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UNPUBLISHED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 BROWN/MCCOVERY, Minors. May 4, 2023
No. 362528
Genesee Circuit Court
Family Division
LC No. 19-136336-NA
Before: GADOLA, P.J., and PATEL and MALDONADO, JJ.
PER CURIAM.
Respondent appeals by right the trial court’s order terminating her rights to the minor
children, QTB, SM1, and SM2, pursuant to MCL 712A.19b(3)(b)(i) (parent’s act caused physical
injury or physical or sexual abuse to child or sibling), (c)(i) (conditions that led to adjudication
continue to exist), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and
custody), and (j) (reasonable likelihood of harm if returned to parent). We affirm the trial court’s
finding that the statutory grounds for termination of respondent’s parental rights were established
by clear and convincing evidence. However, because the trial court failed to consider the fact that
the children were placed with a relative, we must vacate the court’s finding that termination of
respondent’s parental rights was in the best interests of the children and remand this case for
additional fact finding.
I. BACKGROUND
In October 2019, the Department of Health and Human Services (DHHS) alleged that
respondent was homeless, abusing alcohol, severely physically abusing her children, neglecting
her children, and not financially providing for the children despite getting state assistance funds to
do so. DHHS requested that the trial court remove the children from respondent’s care and custody
and exercise jurisdiction. The court authorized the petition, the children were removed from
respondent’s care, and respondent was granted supervised parenting time.
In February 2020, a bench trial was conducted to determine whether the court could
exercise jurisdiction over the children. At the beginning of the trial, respondent pleaded to
jurisdiction pursuant to MCL 712A.2(b)(1) and (b)(2). Respondent admitted to and pleaded nolo
contendere to DHHS’s allegations in its petition that she was homeless, that she still would have
been homeless had she not been incarcerated at the time, and that her failure to maintain a home
-1-
placed the children at a risk of harm. The trial court exercised jurisdiction, continued respondent’s
supervised parenting time, and ordered DHHS to engage in reasonable efforts toward reunification.
DHHS created a case service plan, which the trial court adopted. Respondent was ordered to
participate in and benefit from (1) parenting classes, (2) domestic violence classes, (3) individual
therapy, and (4) substance abuse treatment. Respondent was also ordered to complete a
psychological evaluation, submit to random drug screenings, maintain a legal source of income
and suitable housing, and regularly attend visits with the children.
Because respondent was incarcerated at the height of the COVID-19 pandemic, her access
to services was limited. However, respondent engaged in all of the services that were available to
her and regularly attended supervised visits with the children, who were living with respondent’s
grandmother. In August 2020, DHHS asked the trial court to change the permanency plan to
adoption and to authorize DHHS to file a petition to terminate respondent’s parental rights. The
trial court changed the permanency plan to a dual goal of reunification and adoption, but it denied
DHHS’s request to authorize it to file a petition for termination. Upon her release from prison in
May 2021, respondent completed all of the services that were expected of her, maintained a legal
source of income, found suitable housing, submitted to random drug screenings, and regularly
attended supervised visits with the children.
On January 13, 2022, the trial court ordered that the permanency goal be changed back to
reunification and that the children be placed back into respondent’s custody because respondent
had completed all of the services that were recommended to her by DHHS. However, less than
two weeks after the children were released back to her care, respondent was arrested again for
child abuse. On January 25, 2022, the trial court removed the children from respondent’s custody,
and DHHS placed the children back into the care of respondent’s grandmother.
In April 2022, DHHS filed a petition to terminate respondent’s parental rights under MCL
712A.19b(3)(c)(i), (c)(ii), (g), and (j). At the termination hearing, both the DHHS caseworker and
respondent testified that respondent was convicted of third-degree child abuse on two separate
occasions, one of which was related to the January 2022 incident. Respondent admitted at the
termination hearing that she “popped” QTB in the mouth in January 2022 and stated that she was
disciplining him. Respondent also admitted that she bit SM1 and SM2 in January 2022 while she
was playing with them, but she stated that the bites were “playful.” The caseworker testified that
QTB reported that respondent drank alcohol daily and physically abused him and his brothers
every night after she had regained custody on January 13, 2022. Respondent, respondent’s
grandmother, and the caseworker all testified that during a phone call from jail, respondent
instructed the children to tell the authorities that they lied about the abuse that occurred in January
2022. Respondent also asked her grandmother, with whom the children had been residing, to
convince the children to say that they lied because she was “looking at six years” in prison. The
caseworker testified that respondent completed all of her services but that respondent did not
benefit from the services because she continued to abuse her children after regaining custody. The
caseworker testified that termination was in the children’s best interests because respondent failed
to benefit from the services; it was unfair and unhealthy for the children to have to continue to deal
with physical abuse, substance abuse, and anger management issues from respondent; and two of
the children stated that they were afraid of respondent. At the close of proofs, the trial court found
that DHHS had established grounds for termination under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and
(j) by clear and convincing evidence and that termination was in the children’s best interests.
-2-
Additionally, the trial court sua sponte concluded that termination was also appropriate under MCL
712A.19b(3)(b)(i).1 This appeal followed.
II. STATUTORY GROUNDS FOR TERMINATION
Respondent argues that the trial court clearly erred by finding statutory grounds for
termination of her parental rights. We conclude that the evidence of respondent’s ongoing physical
abuse of her children in conjunction with her inability to recognize that her actions constituted
abuse supported the trial court’s findings pursuant to MCL 712A.19b(3)(c)(i). We decline to
review the court’s findings as it pertains to subdivisions (b)(i), (c)(ii), (g), and (j).
“[T]o 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). To be clearly erroneous, a trial
court’s determination must be more than possibly or probably incorrect. In re Ellis, 294 Mich App
30, 33; 817 NW2d 111 (2011). A finding is clearly erroneous if we are left with a definite and
firm conviction that a mistake has been made. Id. We give regard “to the special opportunity of
the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C).
“Only one statutory ground need be established by clear and convincing evidence to terminate a
respondent’s parental rights, even if the court erroneously found sufficient evidence under other
statutory grounds.” Ellis, 294 Mich App at 32. If we conclude that the trial court did not clearly
err by finding one statutory ground for termination of respondent’s parental rights, we need not
address the additional grounds. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
Termination under MCL 712A.19b(c)(i) is proper when “the totality of the evidence amply
supports that [the respondent] had not accomplished any meaningful change in the conditions” that
led to the adjudication, In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009), and would
not be able to rectify those conditions within a reasonable time, MCL 712A.19b(3)(c)(i). At the
time of termination, 182 or more days had elapsed since the issuance of the initial dispositional
order with respect to respondent. See MCL 712A.19b(3)(c). Additionally, respondent did not
accomplish any meaningful change in the conditions that led to adjudication.
The children were removed from respondent’s care in 2019 primarily because of her
physical abuse of the children. Respondent was convicted of third-degree child abuse twice, and
the second conviction was related to abuse that occurred less than two weeks after respondent had
regained custody of the children. Respondent admitted to hitting QTB to “discipline” him, and
she strongly implied that she would hit one of her children again if similar circumstances arose.
Respondent also admitted that she told her children to lie about the January 2022 abuse and told
1
We note that a parent in a parental rights termination proceeding has a due-process right to notice
of the nature of the proceedings and a meaningful opportunity to be heard. In re TK, 306 Mich
App 698, 706; 859 NW2d 208 (2014). By sua sponte concluding that termination was also
appropriate under MCL 712A.19b(3)(b)(i), the trial court necessarily brought about a due-process
issue. See In re Perry, 193 Mich App 648, 650-651; 484 NW2d 768 (1992). However, because
termination was proper under other grounds that were properly raised by DHHS and found by the
trial court, any error in this regard was harmless. HRC, 286 Mich App at 461.
-3-
her grandmother to convince the children to lie about the abuse. The caseworker testified that
QTB stated that he was afraid that respondent would “beat him up” after she was released from
prison if he did not lie about the abuse as she instructed him to. QTB reported that respondent had
physically abused him and his younger brothers on a daily basis since they were placed back in
her custody. Two of the children told the caseworker that they were afraid of respondent.
Additionally, SM1 and SM2 reported that they saw respondent hit QTB with a can in his lip in
January 2022, and QTB reported that respondent hit him approximately 10 to 15 times with the
can.
The record also supports the trial court’s finding that there was no reasonable likelihood
that respondent would rectify the conditions within a reasonable time. See MCL
712A.19b(3)(c)(i). On appeal, respondent emphasizes that she participated in and completed all
of the services that DHHS provided to her. However, a respondent’s “mere participation is not the
same as overcoming the barriers in place.” In re Sanborn, 337 Mich App 252, 279; 976 NW2d 44(2021). The caseworker testified that despite respondent’s completion of the offered services,
respondent showed no benefits from the completed services because she continued to drink alcohol
and physically abuse her children. Participation in and completion of services is insufficient where
a respondent “fail[s] to demonstrate sufficient . . . benefit from those services specifically targeted
to address the primary basis for the adjudication in th[e] matter[.]” In re Frey, 297 Mich App 242,
248; 824 NW2d 569 (2012). While respondent completed services that were meant to address her
substance abuse issues, anger issues, and physical violence issues, the fact that she was
incarcerated again for child abuse after drinking and physically abusing her children less than two
weeks after she had regained custody of them was very strong evidence that she did not benefit
from the provided services. See Sanborn, 337 Mich App at 274; see also Frey, 297 Mich App at
248. Given respondent’s history, the caseworker did not believe that respondent would benefit
from additional services if given more time, and the trial court agreed. Accordingly, the record
supports the conclusion that there was no reasonable likelihood that respondent would rectify the
conditions that led to adjudication within a reasonable time. See MCL 712A.19b(3)(c)(i).2
For these reasons, we conclude that the trial court did not clearly err by finding that grounds
for termination of respondent’s parental rights had been established by clear and convincing
evidence.
III. BEST INTERESTS
The children were placed with their great grandmother at the time of the termination of
respondent’s parental rights; however, nothing in the record suggests that the court considered that
the children were placed with a relative when it articulated its findings. Therefore, we must vacate
the trial court’s best interests determination and remand for additional fact finding.
“If the court determines that one or more statutory grounds for termination exist and that
termination is in the child’s best interests, the court must enter an order terminating the
2
Because only one statutory ground for termination must be established to terminate parental
rights, HRC, 286 Mich App at 461, we need not address the additional statutory grounds for
termination.
-4-
respondent’s parental rights and order that additional efforts for reunification not be made.” In re
Ferranti, 504 Mich 1, 16; 934 NW2d 610 (2019), citing MCL 712A.19b(5). “[W]hether
termination of parental rights is in the best interests of the child must be proved by a preponderance
of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court’s
ruling regarding best interests is reviewed for clear error. In re Schadler, 315 Mich App 406, 408;
890 NW2d 676 (2016).
“The trial court should weigh all the evidence available to determine the children’s best
interests.” In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). When determining whether
termination is in the best interests of the child, the court should place its “focus on the child rather
than the parent.” Schadler, 315 Mich App at 411. In making its determination, the court may
consider 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.” White, 303 Mich App at 713-714. “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.” Id. The trial court must determine each child’s interests individually, but
it is not required to make individual best-interest findings for each child when the best interests of
the children do not significantly differ. Id. at 715-716.
In this case, all three children were placed with their great grandmother. Great
grandparents are considered “relatives” as the term is defined for the purposes of termination
proceedings. See MCL 712A.13a(1)(j)(i).
[B]ecause a child's placement with relatives weighs against termination . . . the fact
that a child is living with relatives when the case proceeds to termination is a factor
to be considered in determining whether termination is in the child's best interests.
Although the trial court may terminate parental rights in lieu of placement with
relatives if it finds that termination is in the child's best interests, 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. A trial court's failure to explicitly address whether termination is
appropriate in light of the children’s placement with relatives renders the factual
record inadequate to make a best-interest determination and requires reversal. [In
re Olive/Metts Minors, 297 Mich App 35, 43; 823 NW2d 144 (2012).]
In the present case, the trial court made no mention of the fact that the children were placed with
a relative while making its findings pertaining to best interests or the statutory grounds. The
omission “renders the factual record inadequate” and the case must therefore be remanded for
additional fact-finding. Id.Petitioner argues that the best interest findings should be affirmed because there was
testimony suggesting that the great grandmother was not a suitable placement. Regardless of
petitioner’s opinion regarding the suitability of this placement, the children were placed with her
at the time of termination. Therefore, the trial court must consider this placement when assessing
the best interests of the children. Because it did not do so, we have no choice but to vacate its
finding and remand for additional proceedings.
-5-
IV. CONCLUSION
We affirm the trial court’s finding that petitioner provided clear and convincing evidence
that at least one statutory ground for termination of parental rights was established. We vacate the
trial court’s finding that termination of respondent’s parental rights was in the best interests of the
children. This case is remanded for additional proceedings consistent with this opinion. We retain
jurisdiction.
/s/ Michael F. Gadola
/s/ Sima G. Patel
/s/ Allie Greenleaf Maldonado
-6-
Court of Appeals, State of Michigan
ORDER
Michael F. Gadola
In re Brown/McCovery Minors Presiding Judge
Docket No. 362528 Sima G. Patel
LC No. 19-136336-NA Allie Greenleaf Maldonado
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 28 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. The
proceedings on remand are limited to the issues specifically addressed in the opinion issued concurrently
with this order.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.
_______________________________
Presiding Judge
May 4, 2023