in Re Justice Minors ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re JUSTICE, Minors. September 11, 2018
No. 341248
Calhoun Circuit Court
Family Division
LC No. 15-000244-NA
Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order terminating her parental
rights to her minor children JJJ, NAJ, and JLJ under MCL 712A.19b(3)(c)(i) (the conditions that
led to the adjudication continue to exist and no reasonable likelihood exists that the conditions
will be rectified in a reasonable time), MCL 7l2A.l9b(3)(c)(ii) (parent failed to rectify other
conditions after being notified and given opportunity to do so and there is no reasonable
expectation of her doing so in a reasonable time), MCL 712A.19b(3)(g) (parent fails to provide
proper care or custody and there is no reasonable expectation of her providing proper care and
custody in a reasonable time), and MCL 712A.19b(3)(j) (there is a reasonable likelihood, based
on the conduct or capacity of the child’s parent, that the child will be harmed if returned to the
home of the parent). We affirm.
Two of respondent-mother’s children failed to attend school regularly during the 2014
school year. The county prosecutor filed a petition for jurisdiction, and the trial court conducted
an adjudication trial and took jurisdiction over JJJ, but not NAJ or JLJ because they had been
residing with their aunt under a power of attorney. JJJ, at this point, remained in the parental
home despite the exercise of jurisdiction. The Michigan Department of Health and Human
Services (DHHS) later sought jurisdiction over the remaining two children and sought
emergency removal of all three children from the home because respondent-parents failed to
comply with required services and had serious substance-abuse and domestic-violence problems.
Further, the children’s aunt could no longer care for the children and her power of attorney had
elapsed, and respondent-parents were incarcerated at the Calhoun County Jail. A foster-care
case manager reported to Child Protective Services (CPS) that respondent-mother tested positive
six consecutive times for methamphetamine use before her incarceration. The children had
nowhere to live because of respondent-parents’ incarceration and a lack of relatives able to care
for them. The children were removed from the home.
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After another adjudication trial, the trial court found that, under MCL 712A.2(b), the
children were at substantial risk of harm because of respondent-parents’ incarceration and the
expiration of the power of attorney. The trial court also found that respondent-mother had a
history of substance abuse and domestic violence. The trial court, therefore, assumed
jurisdiction over the remaining two children.
During the pendency of this case respondent-mother failed all but one of her drug
screens. She declined a referral to substance-abuse counseling. She also irregularly participated
in parenting time with the children. Ultimately, because respondent-mother did not avail herself
of services made available to her and she lacked housing and employment, the DHHS petitioned
for termination of respondent-mother’s parental rights.
The trial court conducted a termination hearing and found that clear and convincing
evidence established the statutory grounds under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j) for
termination of respondent-mother’s parental rights. The trial court also determined that a
preponderance of the evidence established that termination of respondent-mother’s parental
rights served the children’s best interests. Respondent-mother now appeals.
Respondent-mother contends that the trial court erred because clear and convincing
evidence did not establish that respondent-mother could not maintain sobriety and the trial court
failed to give her an opportunity to maintain sobriety and reunite with her children. She also
argues that the trial court erred by ruling that termination of her parental rights served the
children’s best interests. We disagree.
We review for clear error the trial court’s finding of statutory grounds under MCL
712A.19b(3) for termination of parental rights. MCR 3.977(K); In re VanDalen, 293 Mich. App.
120, 139; 809 NW2d 412 (2011). To terminate parental rights, the trial court must find that at
least one of the statutory grounds for termination in MCL 712A.19b(3) has been established by
clear and convincing evidence. Id. A factual finding is clearly erroneous if this Court has a
definite and firm conviction that a mistake was made. In re HRC, 286 Mich. App. 444, 459; 781
NW2d 105 (2009). We give deference to the trial court’s “special opportunity to judge the
credibility of witnesses.” Id. When a statutory ground for termination is proven, the trial court
shall order termination of parental rights if termination of parental rights is in the child’s best
interests in light of the evidence as set forth in the whole record. MCL 712A.19b(5); In re LE,
278 Mich. App. 1, 25; 747 NW2d 883 (2008). A trial court must find by a preponderance of the
evidence that termination serves the best interests of the children before it may terminate parental
rights. In re Moss, 301 Mich. App. 76, 90; 836 NW2d 182 (2013). We also review for clear error
the trial court’s determination that termination of respondent’s parental rights served the
children’s best interests. MCR 3.977(K); In re Hudson, 294 Mich. App. 261, 264; 817 NW2d 115
(2011). This Court defers to the “trial court’s factual findings at termination proceedings if those
findings do not constitute clear error.” In re Rood, 483 Mich. 73, 90; 763 NW2d 587 (2009).
In In re Rood, id. at 91, the Michigan Supreme Court stated:
A natural parent has a fundamental liberty interest “in the care, custody,
and management” of his child that is protected by the Fourteenth Amendment of
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the United States Constitution . . . and by article 1, § 17, of the Michigan
Constitution[.] [Citations omitted.]
Both the United States Supreme Court and the Michigan Supreme Court have held that a parent’s
right to control the custody and care of her children is not absolute because a state has a
legitimate interest in protecting “ ‘the moral, emotional, mental, and physical welfare of the
minor,’ and in some circumstances ‘neglectful parents may be separated from their children.’ ”
In re Sanders, 495 Mich. 394, 409-410; 852 NW2d 524 (2014), quoting Stanley v Illinois, 405 U.S.
645, 652; 92 S. Ct. 1208; 31 L. Ed. 2d 551 (1972). Parents are “constitutionally entitled to a
hearing on their fitness before their children are removed from their custody.” In re Sanders,
495 Mich. at 412 (quotation marks and citation omitted).
Once a court assumes jurisdiction over a child, the court “has broad authority in
effectuating dispositional orders” that are “appropriate for the welfare of the juvenile and society
in view of the facts proven and ascertained . . . .” Id. at 406 (quotation marks and citations
omitted).
MCL 712A.19b(3) provides, in relevant part:
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, without regard to intent, 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.
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(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.
If this Court concludes that the trial court did not clearly err by finding one statutory
ground for termination, this Court does not need to address the additional grounds. In re HRC,
286 Mich. App. at 461.
In this case, clear and convincing evidence established that statutory grounds for
termination of respondent-mother’s parental rights existed under MCL 712A.19b(3)(c)(i) and
(c)(ii). Witnesses’ testimonies and documentary evidence in the record established that the
conditions that led to the adjudication continued to exist and that no reasonable likelihood
existed that the conditions would be rectified within a reasonable time considering the children’s
ages. Further, other conditions existed that respondent-mother failed to rectify despite knowing
and having been given a reasonable opportunity to do so.1 Respondent-mother had a serious
substance-abuse problem and repeatedly tested positive for methamphetamine. However, she
refused to engage in substance-abuse counseling. Her addiction interfered with her ability to
parent and to secure and maintain stable housing and employment.
Further, respondent-mother lacked parenting skills, failed to take parenting classes, and
failed to learn how to take care of the children’s special needs despite having opportunities to
engage in services made available to her. The record reflects that respondent-mother never took
responsibility for her actions and neglected to take the initiative to rectify adverse conditions so
that she could be reunified with the children. She chose instead to perpetuate her drug addiction.
She also failed to address her domestic-violence problem despite opportunities presented to her
to engage in services to assist her. Nothing in the record indicates that respondent-mother made
any effort to maintain sobriety or do anything to enable her to reunite with the children.
Respondent-mother asserts that even though she could not take care of the children at the time of
the termination hearing, the trial court should have given her more time to “get clean . . . .” But
respondent-mother had evidenced an almost complete failure to comply with services previously
offered.
Clear and convincing evidence established the statutory grounds for termination under
MCL 712A.19b(3)(c)(i) and (c)(ii). Because we are convinced that the trial court did not err by
finding that clear and convincing evidence established the existence of statutory grounds for
termination of respondent-mother’s parental rights under MCL 712A.19b(3)(c)(i) and (c)(ii), we
do not need to address the other grounds the trial court found for termination. In re HRC, 286
Mich. App. at 461.
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Although the initial condition leading to adjudication for JJJ was the failure of respondent-
mother to have him attend school regularly, the “other conditions” in MCL 712A.19b(3)(c)(ii)
are applicable.
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When considering best interests, the trial court must focus on the children rather than the
parent. In re Moss, 301 Mich. App. at 87. The trial court may consider several factors including
the children’s bond to the parent, the parent’s parenting ability, and the children’s need for
permanency, stability, and finality. In re Olive/Metts, 297 Mich. App. 35, 41-42; 823 NW2d 144
(2012). The trial court may also consider how long the children have lived in their present home,
and the likelihood that they “could be returned to [the parent’s] home within the foreseeable
future, if at all.” In re Frey, 297 Mich. App. 242, 248-249; 824 NW2d 569 (2012).
In In re White, 303 Mich. App. 701, 713-714; 846 NW2d 61 (2014), this Court
summarized:
The trial court should weigh all the evidence available to determine the
children’s best interests. 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. [Quotation marks and citations omitted.]
A trial court may also consider a history of child abuse. In re Powers, 244 Mich. App. 111, 120;
624 NW2d 472 (2000). Further, a child’s safety and well-being, including the risk of harm a
child might face if returned to the parent’s care, constitute factors relevant to a best-interests
determination. In re VanDalen, 293 Mich. App. at 142.
A preponderance of the evidence in this case supported the trial court’s best-interests
decision. Testimony established that the children lacked a normal parent-child bond with
respondent-mother. Instead, the bond was more akin to a friendship bond. Witnesses’
testimonies also established that respondent-mother lacked the parenting ability necessary to care
for the children’s special needs. The record reflects that respondent-mother failed to learn how
to care for NAJ’s serious medical needs and she failed to learn how to deal effectively with the
other children’s special needs to provide structure and parental control. Respondent-mother
infrequently engaged in parenting time despite being offered numerous opportunities to visit with
the children. The record reflects that during parenting time, respondent-mother generally acted
appropriately with the children but often experienced being overwhelmed with them, and thus
crying.
The children’s needs were being met in foster care. There, they faced no risk of harm.
The evidence, however, established that if returned to respondent-mother’s care, a high
likelihood existed that they would not have a functional home environment.
The record also reflects that respondent-mother lacked appropriate focus on taking action
to get her life under control so that she could provide the children a stable and loving home. She
chose addiction over her children and no evidence established that she had any inclination to
change that. Further, evidence established that domestic violence existed in the home between
respondent-parents. Respondent-mother took no steps to engage in services that would have
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assisted her in this regard. No evidence established that respondent-mother recognized the
problem or the need to deal with it for her sake or the children’s sake.
Witnesses’ testimonies established that respondent-mother failed in every respect to
comply with her case-service plan. She refused to undergo substance-abuse counseling. She
failed to attend parenting-skills classes. She failed to engage in the recommended counseling to
assist her in overcoming her mental-health issues. Respondent-mother’s inconsistent visitation
history with the children also established that she lacked the requisite concern and intent to
reunite with her children.
While we agree with the trial court that the DHHS should have made further efforts to
find preadoptive homes for all three children, we also agree that despite this failure, a
preponderance of the evidence nevertheless established that the children’s best interests would be
served by the termination of respondent-mother’s parental rights. No clear error is apparent.
Affirmed.
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
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