In Re S J Simmons Minor ( 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UNPUBLISHED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 S. J. SIMMONS, Minor. August 10, 2023
No. 363836
Macomb Circuit Court
Family Division
LC No. 2020-000153-NA
Before: BOONSTRA, PJ., and LETICA and FEENEY, JJ.
PER CURIAM.
Respondent, the mother of the minor child, SJS, appeals as of right the trial court’s order
terminating her parental rights to the child under MCL 712A.19b(3)(c)(i), (g), and (j).1 We affirm.
In July 2020, petitioner Department of Health and Human Services (DHHS) filed a petition
requesting that the trial court exercise jurisdiction over the minor child. The petition alleged that
on March 2, 2020, respondent was found unresponsive at a hospital and the child’s father had been
charged with physically abusing the child. On June 16, 2020, another complaint instigated a new
investigation after respondent was found unresponsive at a hospital due to alcohol related issues.
Before respondent was hospitalized, she left the child with a friend by the name of David, who in
turn left the child with his friend Tanya who was a known heroin addict. The Clinton Township
police found Tanya passed out on the side of the road in the driver’s seat of her vehicle, with the
child SJS in the back seat. On July 24, 2020, respondent entered a no-contest plea to the allegations
in the amended petition and the court obtained jurisdiction over the child.
After the trial court accepted respondent’s plea, she was offered a treatment plan that
required her to participate in a psychological evaluation as well as a substance abuse assessment
and follow the recommendations, submit to random drug screens, complete parenting classes and
demonstrate benefit, consistently participate in parenting time and appropriately parent the child,
maintain safe and suitable housing and cooperate with a home study, provide proof of a legal
1
Although respondent asserts that the trial court also terminated her parental rights under MCL
712A.19b(3)(c)(ii), the record discloses that the trial court expressly found that petitioner did not
meet its burden of proof with regard to § 19b(3)(c)(ii).
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source of income and demonstrate an ability to pay bills and budget for the child, live a lawful
lifestyle and resolve any legal issues, and maintain contact and cooperate with petitioner. The trial
court adopted the treatment plan and ordered respondent to comply with the plan.
On August 16, 2022, petitioner DHHS filed a supplemental petition requesting termination
of respondent’s parental rights. The petition alleged that respondent failed to benefit from mental
health or substance abuse treatment because she missed drug screens, visitation and therapy,
continued to submit positive drug screens, and continued to demonstrate inconsistent emotional
stability. The petition further alleged that although respondent had completed parenting classes,
she failed to demonstrate effective, age-appropriate parenting skills, and more recently the child
had displayed negative reactions during and after visits. Respondent never advanced to
unsupervised visitation because of her continued drug or alcohol use and ineffective parenting
skills. Further, respondent was unemployed and failed to provide any proof of employment after
November 2021. Following a hearing in October 2022, the trial court found that petitioner
established statutory grounds for termination pursuant to MCL 712A.19b(3)(c)(i), (g), and (j), and
further found that termination of respondent’s parental rights was in the child’s best interests.
Respondent appeals the termination of parental rights to SJS.2 We affirm.
I. STATUTORY GROUNDS FOR TERMINATION
Respondent first argues that the trial court erred by finding that grounds for termination
were established under MCL 712A.19b(3)(c)(i), (c)(ii) and (j). As noted earlier, however,
respondent incorrectly asserts that the trial court relied on § 19b(3)(c)(ii) as a statutory basis for
termination. Although the supplemental petition requested termination under § 19b(3)(c)(ii), the
trial court expressly found that petitioner did not meet its burden of proof with regard to subsection
(c) (ii). Further, the record discloses that in addition to relying on §§ 19b(3)(c)(i) and (j), the trial
court also relied on § 19b(3)(g) as an additional ground for termination. Respondent does not
address the trial court’s findings regarding § 19b(3)(g). Accordingly, any challenge to the trial
court’s reliance on § 19b(3)(g) may be considered abandoned. Berger v Berger, 277 Mich App
700, 712; 747 NW2d 336 (2008); see also In re JS & SM, 231 Mich App 92, 98-99; 585 NW2d
326 (1999) (where a respondent does not challenge a trial court’s determination as to one or more
of several statutory grounds for termination, this Court may assume that the trial court did not
clearly err by finding that the unchallenged ground was proved by clear and convincing evidence),
overruled in part on other grounds by In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000). In
any event, the trial court did not clearly err by finding that the evidence supported termination of
respondent’s parental rights under all three cited grounds, §§ 19b(3)(c)(i), (g), and (j).
In order to terminate parental rights, the trial court must find that at least one of the statutory
grounds under MCL 712A.19b(3) has been established by clear and convincing evidence. In re
Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). This Court reviews for clear error a trial
court’s finding whether a statutory ground for termination has been proven by clear and convincing
evidence. MCR 3.977(K). A finding is clearly erroneous if the reviewing court is left with a
2
The father of SJS released his parental rights and did not join in this appeal.
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definite and firm conviction that a mistake has been committed. In re Miller, 433 Mich 331, 337;
445 NW2d 161 (1989).
MCL 712A.19b(3)(c)(i), (g), and (j) permit termination of parental rights under the
following circumstances:
(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.
MCL 712A.19b(3)(c)(i) is satisfied if, despite the time the parent is given “to make changes
and the opportunity to take advantage of a variety of services, the conditions that originally brought
the child[] into the foster care system still existed.” In re Powers, 244 Mich App 111, 119; 624
NW2d 472 (2000). The trial court originally took jurisdiction of the child because respondent left
SJS without proper care and custody due to respondent’s mental health and substance abuse issues.
The child, who was only 3 years old at the time of termination, was in care for more than two years
while respondent was offered services. Respondent participated in a psychological evaluation,
individual therapy, and supervised visitation therapy. She was required to submit drug screens
and her therapist combined substance abuse treatment with respondent’s individual mental health
therapy. Respondent was also offered a parent partner, but she threatened the parent partner,
refused to apologize, and declined to appeal for acceptance back into the program.
After more than two years while SJS was in care, respondent still submitted drug screens
that were positive for THC and cocaine, and she continued to miss scheduled screens. When
confronted by the caseworker, respondent initially denied any marijuana use, then claimed that she
had been around people who were smoking it, and later stated that she had smoked marijuana “for
fun.” At the termination hearing, respondent testified that a friend gave her CBD gummies that
she did not know contained THC. She also denied any cocaine usage. Respondent denied any
substance abuse issues despite her history of positive screens, missed screens, and admitted prior
drug use.
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With regard to respondent’s mental health, there were several periods when respondent
stopped attending therapy or was terminated from therapy due to poor attendance. Respondent
refused to attend therapy from October 2021 to January 2022. Although she reengaged in therapy
by June 2022, respondent was no longer attending therapy and told the caseworker that she stopped
going because she did not see the point of it. Additionally, respondent was hospitalized for
approximately two weeks in May 2022 because she had a breakdown after she stopped taking her
Prozac, Haldol and Antabuse to address her bipolar, schizophrenia, and alcohol issues.
Respondent then returned to therapy, but her attendance between August and September 2022 was
inconsistent. Accordingly, the therapist terminated her from the program.
Respondent also demonstrated continued emotional instability. She threatened the parent
partner, the foster parents, and the caseworker. Respondent left a series of threatening voicemails
for the parent partner after hours, and the caseworker believed respondent was under the influence
of alcohol or another substance because respondent slurred her words. Although respondent
testified that she regretted sending threatening Facebook messages to the foster parents, she
admitted that she sent the messages to scare them. Respondent also sent the caseworker
threatening messages late at night, sometimes as many as 50 at a time. The caseworker received
these messages as late as May 2022, one month before petitioner filed the supplemental petition
for termination of respondent’s parental rights.
Respondent’s attendance at scheduled visits was inconsistent and she never attended 100%
of the available visits during any reporting period. In the six months before the termination
hearing, respondent attended only half of the available visits. The foster parents reported that in
November 2021, the child began having behavioral issues after visits with respondent, such as
tantrums, nightmares, and physical altercations with other children at daycare. And the child
expressed reluctance to attend visits and attempted to leave the visitation room during parenting
time.
Considering this evidence, the trial court did not clearly err by finding that respondent
failed to adequately address the conditions that brought the child into care. The trial court also did
not clearly err by finding that there was no reasonable likelihood that respondent would be able to
rectify these conditions within a reasonable time considering the child’s age. Respondent’s
participation and progress did not improve as the case advanced, but rather became more sporadic
and the child’s behavior worsened. Accordingly, the trial court did not clearly err by finding that
the evidence supported termination under § 19b(3)(c)(i).
With respect to § 19b(3)(g), the evidence established that, after more than two years,
respondent failed to substantially comply with the requirements of her treatment plan. Section
19b(3)(g) requires the trial court to consider the respondent’s financial ability to provide proper
care and custody. In addition to the evidence discussed above regarding respondent’s failure to
adequately address her substance abuse and mental health issues and her failure to consistently
attend parenting time with SJS, the trial court made findings regarding respondent’s financial
ability to provide proper care and custody for SJS. With regard to employment, respondent told
the caseworker that she did not believe that she could work because of her mental health. But,
respondent’s therapist advised that respondent should seek employment because her emotional
well-being improved when she was employed. The trial court considered this evidence and found
that respondent had the ability to financially provide for SJS, but she chose not to seek
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employment. And as explained earlier, the evidence established that, after more than two years,
respondent failed to substantially comply with the requirements of her treatment plan. In
particular, she was not consistently participating in therapy, her mental health remained unstable,
she continued to submit positive drug screens, and she failed to consistently attend visits with the
child. The trial court did not clearly err by finding that the evidence supported termination of
respondent’s parental rights under § 19b(3)(g).
The harm contemplated by § 19b(3)(j) includes emotional harm in addition to physical
harm. In re Sanborn, 337 Mich App 252, 279; 976 NW2d 44 (2021). The trial court relied on its
findings regarding §§ 19b(3)(c)(i) and (g) to find that the evidence also supported termination
under § 19b(3)(j). The evidence established that respondent did not rectify the conditions that led
to the adjudication, which left the child without proper care and custody. During two separate
periods, October 2021 to January 2022, and August to September 2022, respondent failed to
participate in her treatment plan to rectify the conditions that brought the child into care. On
several different occasions, respondent’s behavior was erratic and threatening to the service
workers and foster parents. As the case progressed, the child’s behavior during and after parenting
time with respondent deteriorated considerably. Because respondent failed to adequately address
her substance abuse and mental health issues, and her dedication to visitation with the child was
lacking, the trial court did not clearly err by finding that there was clear and convincing evidence
that the child would be harmed if returned to respondent’s care.
II. BEST INTERESTS
Respondent also argues that the trial court erred by finding that termination of her parental
rights was in the child’s best interests. We disagree.
Once a statutory ground for termination has been established, the trial court must find that
termination of parental rights is in the child’s best interests before it can terminate parental rights.
In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). “[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 at 90. This Court reviews for clear error the trial court’s
findings regarding a child’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61(2014).
As explained in In re White, 303 Mich App at 713-714:
To determine whether termination of parental rights is in a child’s best
interests, the 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 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. [Citation omitted.]
Respondent argues that the termination of her parental rights was not in the child’s best
interests because she loved the child, wanted to reunite with her, and she and the child shared a
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strong bond. The evidence did not support respondent’s assertion of a strong bond; on the contrary,
the caseworker testified that respondent and the child shared a distant bond. Moreover, as the child
grew older and respondent’s attendance at visitation remained inconsistent, the child began
experiencing adverse effects from visits and she strongly resisted attending the visits. The foster
parent described coaxing and bribing the child to cooperate while preparing for parenting time.
The child threw tantrums and tried to run out of the visitation room. She also experienced negative
behaviors after visits, such as nightmares, an inability to sleep, and biting and misbehaving at
daycare the following day. Because of respondent’s missed visits, missed drug screens, and
inconsistent participation, respondent never progressed to unsupervised visitation. Respondent’s
lack of participation and negative behavior did not support her belief that she would be able to
provide proper care and custody for the child within six months.
The testimony established that the child was thriving in her current placement, and that she
and her foster family were well-bonded. The foster mother testified that she and her husband were
committed to providing permanence and stability for the child and they were financially able to
fully support her. A preponderance of the evidence supports the trial court’s finding that
termination of respondent’s parental rights was in the child’s best interests.
Affirmed.
/s/ Mark T. Boonstra
/s/ Anica Letica
/s/ Kathleen A. Feeney
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