In Re C Dziuba 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UNPUBLISHED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 C.D., Minor. August 17, 2023
No. 364442
Alpena Circuit Court
Family Division
LC No. 20-007536-NA
Before: YATES, P.J., and BORRELLO and PATEL, JJ.
PER CURIAM.
Respondent-appellant, father of the minor child, appeals as of right the order entered of the
family division of the circuit court terminating his parental rights to that child.1 On appeal,
respondent contends there was insufficient evidence to support a statutory ground for termination,
and termination was premature because petitioner did not make reasonable family reunifications
efforts. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
In August of 2020, the minor child was removed from her mother’s care because the mother
was abusing, manufacturing, and selling methamphetamine inside the trailer where they resided.
The allegations included that the residence was filthy and without electricity, and that the minor
child was not cared for while mother slept long hours during the day. In June, 2019, respondent
was arrested, causing the minor child to be placed in nonrelative foster care. Following mother
voluntarily relinquishing her parental rights, caseworkers investigated possible relative placement.
However, it was not until February 18, 2021, that the trial court determined respondent was the
minor child’s biological and legal father. On March 25, 2021, the trial court acquired jurisdiction
in connection with respondent after he admitted that he was convicted of two counts of delivery or
manufacture of methamphetamine, and currently incarcerated with an earliest release date of June
2, 2024, and a latest release date of June 2, 2039.
1
The child’s mother voluntarily relinquished her parental rights and is not participating in this
appeal.
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At the April 15, 2021 dispositional hearing, respondent was ordered to comply with, and
benefit from a parent agency treatment plan. Treatment goals included achieving and maintaining
a drug-free lifestyle and acquiring adequate parenting skills. The trial court thereafter conducted
several periodic review and permanency planning hearings. At the March 2022 permanency
planning hearing, the court adopted petitioner’s recommendation, which the minor child’s lawyer-
guardian ad litem (LGAL) supported, to change the goal from reunification to adoption, and
directed petitioner to file a supplemental petition to terminate respondent’s parental rights.
However, petitioner was to continue to explore possible relative placement.
Petitioner filed a supplemental petition in July 2022, and the trial court terminated
respondent’s parental rights after a hearing in November 2022. This appeal followed.
II. ANALYSIS
A 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). In this
case, the trial court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i)
and (ii), (g), (h) and (j), which state 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.
(ii) Other conditions exist that cause the child to come within the court’s jurisdiction, the
parent has received recommendations to rectify those conditions, the conditions have not been
rectified by the parent after the parent has received notice and a hearing and has been given a
reasonable opportunity to rectify the conditions, 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.
* * *
(h) The parent is in prison for such a period that the child will be deprived of a normal
home for a period exceeding 2 years, and the parent has not provided for the child’s proper care
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and custody, 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.
This Court reviews a finding that a statutory ground for termination has been proved by
clear and convincing evidence for clear error. 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 finding is clearly erroneous when, although there is evidence to support
it, upon review of the entire record, the reviewing court 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). However, unpreserved claims of error are reviewed for
plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
In his appeal, respondent asserts that petitioner and the trial court failed to provide him
with adequate services and that his parental rights were terminated solely on the basis of his
incarceration, as prohibited by In re Mason, 486 Mich 142; 782 NW2d 747 (2010). It is well
established that petitioner is required to make reasonable efforts to reunify a family before
terminating parental rights, unless aggravated circumstances are present such as severe physical
abuse. MCL 712A.19a(2); MCL 722.638. However, “‘The time for asserting the need for
accommodation in services is when the court adopts a service plan . . . .’ ” In re Frey, 297 Mich
App 242, 247; 824 NW2d 569 (2012), quoting In re Terry, 240 Mich App 14, 27; 610 NW2d 563(2000). Respondent does not assert, or provide record citations to show that he expressed any such
need. Accordingly, we review his appellate objection that petitioner failed to provide adequate
reunification services for plain error that affected the outcome. See In re Utrera, 281 Mich App
at 9.
In Mason, the father was expected to be released from prison approximately seven months
after the permanency planning hearing, and four months after the termination hearing, thus his
release was imminent. He had entrusted a suitable relative with the custody and care of his
children. Further, the father in Mason had an established relationship with his children, and had
supported his family by working in construction until he was incarcerated. Id. at 147. He further
had a construction job waiting for him upon his release, along with previously suitable housing
with the children’s mother. Id. at 150. The father in Mason was not offered the opportunity to
participate in any of the termination proceedings for more than 16 months. Id. at 147-148. A
caseworker who had never spoken with the father concluded, without supporting reasoning, that it
would take six months from his release to him comply with a service plan. Id. at 150.
Here, the trial court distinguished this case from Mason, initially finding that respondent’s
release from prison was not imminent. Although respondent’s imprisonment, plus restrictions put
in place in response to the COVID-19 pandemic, had an impact on petitioner’s ability to coordinate
services under two parent-agency treatment plans, the evidence showed that caseworkers actively
endeavored to overcome these limitations by contacting the two prisons where respondent was
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incarcerated to facilitate any available services. The prison facilities, as is typically the case,
provided minimal cooperation. At the termination hearing, caseworker K. testified that she “had
to get creative,” and mailed respondent parenting-class worksheets, which he completed and
returned in pre-stamped envelopes. Caseworker H. explained that it was difficult to provide
services in a men’s prison and so did not provide in-person services to respondent. She further
explained that she received no response from the prison regarding the availability of parent-
education webinars, and so sent parenting information and articles that applied to the child’s age
and development. According to caseworker H., that was the only service petitioner was able to
provide to respondent in prison. Caseworkers also coordinated written exchanges between the
minor child and respondent, and regular updates, including photos, from the caseworker and the
foster mother. Although petitioner typically did not allow a young child to participate in prison
visits, the caseworkers’ multiple attempts to facilitate video visits were thwarted by prison rules
and respondent’s move to another facility. Even so, caseworkers coordinated DNA paternity
testing, assured respondent’s participation in family team meetings by telephone, and actively
sought to find a suitable placement for the child with family members. To respondent’s credit, he
sought out services to help with his drug addiction, including Alcoholics Anonymous and
Narcotics Anonymous meetings, individual counseling, and a substance-abuse program, and was
working toward completing a GED. Hence, the record makes clear that petitioner did provide
respondent with services, and respondent, for the most part, availed himself of those services.
Furthermore, the trial court noted that it ordered petitioner to initiate termination
proceedings following the March 10, 2022, permanency planning hearing, which was more than
two years before respondent’s earliest possible parole date of June 2, 2024. The supplemental
petition was filed on July 8, 2022, which was 23 months before that date. Further, the trial court
found, at the time of the November 2022 termination hearing, the child was nearly three years old,
and had been in nonrelative foster care for more than two years, the vast majority of the minor
child’s life.
Moreover, respondent was not prevented from participating in the proceedings below, and
in fact actively participated in all the hearings. In the few instances where he was unavailable, the
hearing was adjourned to allow for his participation. He also participated in family team meetings,
and was given updated parent-agency treatment plans for his review and signature. Nonetheless,
caseworker H. opined that respondent would not be able to properly care for the minor child for
several months after his release. It is undisputed that respondent had an extensive criminal and
drug-abuse history. Hence, even if he completed all available services, including attending
Narcotics Anonymous and Alcoholics Anonymous meetings, a substance-abuse program, and
individual counseling, and had not used any drugs while incarcerated, the evidence indicated that
it would take several months for him to prove that he had benefited from services and could
maintain sobriety outside of a rigid prison system. Caseworker H. explained that, upon
respondent’s release, he would need to comply with, and benefit from, a new parent-agency
treatment plan to address barriers relating to housing, employment, substance-abuse, parenting
time, parenting education, and building a relationship with the child. Caseworker H. estimated
that it would take at least six to eight months from respondent’s release before family reunification
could be considered. This timeframe was not speculative, as it was in Mason. Rather, it was based
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on the caseworker’s thorough knowledge of the case, which included interactions with respondent,
and her 15 years of experience working for petitioner.
And the record plainly shows that respondent had no history of providing appropriate
custody and care for the minor child. After the latter’s removal from her mother’s care, respondent
initially provided names of several family members for possible relative placement. Caseworker
K. made several attempts to contact them, including by sending inquires by certified mail, but only
the minor child’s paternal grandfather responded.
We further conclude that the trial court did not clearly err in finding that respondent’s
family members were unsuitable to care for the minor child while he was in prison. Four placement
hearings were held to determine if the minor child could properly be placed with a relative. The
record supports the trial court’s finding that the paternal grandfather was not a suitable caregiver
for the minor child. A safety screen revealed that he had a significant criminal history, including
a recent conviction of resisting and obstructing a police officer. Caseworker K. reviewed all police
reports from every offense and discussed them personally with the paternal grandfather. She found
it troubling that he denied most of the offenses, stating that he had been targeted by the police, or
made light of the incidents, and was unremorseful and angry. Moreover, the evidence showed that
he had a very strong disdain for authority, as he revealed during interactions with the court and
caseworkers, particularly during one grandparent visit during which he was so hostile that a deputy
had to escort him out of petitioner’s office building. Although the paternal grandfather was caring
for his young daughter, Caseworker K. explained that there were important difference between
caring for one’s own child and caring for a child in foster care under petitioner’s supervision.
Caseworker K. explained as follows:
[B]ecause of his unwillingness and his lack of cooperation with any type of
authority I believe that it would put [the minor child] at a substantial risk of harm
if [the minor child] were to be placed with him because I would fear that he would
not follow the rules that need to be followed. That he would not be truthful and
honest about things that he needs to be truthful and honest with, with me. And so
because of all of those things taken into, taken into account we had to deny him for
placement.
The proofs showed that respondent was unable to identify other relatives for possible
placement, as the caseworkers regularly requested. In November 2021, he stated that there were
no other placement options. Five months later, respondent’s cousin expressed an interest in caring
for the minor child, although respondent had never mentioned that cousin for that purpose.
Caseworker H. sent response forms for the cousin to complete, and completed a courtesy home
study on April 8, 2022. At that time, the minor child had been in care with one foster family for
more than 18 months. Testimony revealed that the minor child had bonded with her foster family
and had some difficulties following respondent’s cousin’s visits.
Although the home study held promise that respondent’s cousin could care for the minor
child, it was, at the very least, troubling that her husband was on the Central Registry for criminal
sexual conduct involving a minor. She reported that she was in the process of divorce, and that
they no longer lived together, however the divorce was not finalized and the record is unclear as
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to the status of the relationship between the two. However, the trial court endeavored to place the
minor child with a relative so it ordered, and petitioner supervised, several visitations so that the
minor child could develop a connection with respondent’s cousin. However, at the last of four
placement hearings, caseworker H. testified that the cousin’s circumstances had significantly
changed. In particular, a premature and drug-positive newborn (the minor child’s half-sibling) had
been placed in the cousin’s care. She was also taking care of two other children following the
sudden death of her mother. She was driving five hours for the newborn’s appointments and
parenting time, recently had surgery, and was working part-time as an unlicensed home health-
care provider and housekeeper for five clients. Caseworker H. described her as defensive and
evasive when asked about her income, and frustrated because of the extensive driving, and reported
that she was attempting to find financial and other assistance for the baby’s care. Caseworker H.
testified that, although respondent’s cousin behaved appropriately during visits, the minor child
did not easily trust others and was not open to quickly building a connection. At the last video
visit between respondent’s cousin and the minor child, the latter lost interest after 10 to 15 minutes
and then went to the foster mother for comfort. The LGAL recommended that the minor child not
be placed with respondent’s cousin on the basis of her observations during visitations.
On this record, the trial court reasonably concluded that continued placement in the
nonrelative foster home, rather than with respondent’s cousin, was in the minor child’s best
interests. Given the dramatic change in respondent’s cousin’s life relative to caring for additional
and special needs children, it was clear that respondent’s cousin would not be able to meet the
needs of the children recently placed in her care in addition to caring for the respondent’s minor
child. Also, the minor child had formed a primary bond with the foster mother after being in her
care for nearly two years, and also a strong bond with her foster siblings, and was thriving.
Further, the record supports the trial court’s conclusion that there was no reasonable
expectation that respondent would be able to provide proper care and custody within a reasonable
time considering the minor child’s age. Respondent argues that he would quickly be able to parent
his child after his release from prison, however his past criminal and drug history and history of
neglecting his 14-year-old child lead the trial court to a different conclusion. The trial court
acknowledged that respondent completed every service available to him. He testified that he was
on a waiting list to complete vocational training to be an electrician, and that programs were
available to help him find work, and otherwise be successful, when re-entering the community.
Also, respondent asserts on appeal that family members would provide him with housing until he
was back “on his feet.” But these arguments ignore the significant family reunification barriers
that respondent would need to overcome.
The proofs show that respondent, unlike the father in Mason, did not have steady
employment or a suitable home to which he could return upon his release. As the trial court noted,
respondent struggled with severe drug addiction for more than 10 years. His criminal history,
beginning in 2007, included failure to pay child support, operating a vehicle while intoxicated,
operating with a suspended or revoked license, larceny, two incidents of assaulting, resisting, or
obstructing a police officer, and two counts of possession of controlled substance. During a term
of imprisonment of 18 months beginning in 2015 he participated in substance-abuse treatment,
which clearly was unsuccessful considering his most recent conviction. His employment history
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consisted of various general laborer jobs, the longest of which was for 18 months. He also had a
history of unstable housing.
Unlike the father in Mason, respondent had no previously established parent-child
relationship, because the minor child was born after he was incarcerated. Caseworker H. testified
that respondent had never seen the minor child except by video while he was in the county jail,
and that it would take considerable time for a father-child relationship to develop. Moreover, for
years, respondent was unable to provide care for his 14-year-old daughter, who was in the primary
custody of her mother. In 2009 he owed approximately $10,000 in child support, and in 2019
owed more than $19,000. Respondent admitted that he had little interaction with his older daughter
before he was incarcerated. The doctrine of anticipatory neglect recognizes that “ ‘[h]ow a parent
treats one child is certainly probative of how that parent may treat other children.’ ” In re LaFrance
Minors, 306 Mich App 713, 730; 858 NW2d 143 (2014), quoting In the Matter of LaFlure, 48
Mich App 377, 392; 210 NW2d 482 (1973). This minor child will be four and a half years old
upon respondent’s earliest release date. The trial court correctly held that this minor child should
not wait indefinitely for father’s rehabilitation. See In re Dahms, 187 Mich App 644, 647; 468
NW2d 315 (1991) (“the Legislature did not intend that children be left indefinitely in foster care,
but rather that parental rights be terminated if the conditions leading to the proceedings could not
be rectified within a reasonable time”), citing MCL 712A.19b(3)(c)(i).
These proofs similarly support the trial court’s decisions to terminate respondent-
appellant’s parental rights pursuant to MCL 712A.(3)(c)(i), (g), and (j).2
Respondent argues that the trial court improperly considered facts that were not in evidence
regarding a child’s development and formation of attachments with caregivers within the first three
years. But those matters are presumably within the common knowledge of the family division of
the circuit court were not key factors in the court’s determination. Thus, any error was harmless.
“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 termination of
parental rights and order that additional efforts for reunification of the child with the parent not be
made.” MCL 712A.19b(5). Respondent does not argue that the trial court erred in determining
that it was in the child’s best interest to terminate his parental rights.
Reviewing the record as a whole, we are not left with a firm conviction that a mistake was
made in terminating respondent’s parental rights.
2
It is unclear whether the trial court found sufficient evidence to terminate respondent’s parental
rights under MCL 712A.(3)(c)(ii). Because only one statutory ground is needed to terminate
respondent-appellant’s parental rights, it is unnecessary to review factor (c)(ii) for clear error. See
In re Trejo, 462 Mich 341; 365; 612 NW2d 467 (2000).
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Affirmed.
/s/ Christopher P. Yates
/s/ Stephen L. Borrello
/s/ Sima G. Patel
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