Opinion
356219
09-30-2021
In re A. KOTCHIKPA, Minor.
UNPUBLISHED
Ingham Circuit Court Family Division LC No. 16-000381-NA
Before: Beckering, P.J., and Shapiro and Swartzle, JJ.
PER CURIAM
Respondent appeals as of right the trial court's order terminating his parental rights to the minor child, AK, under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (j) (reasonable likelihood of harm if returned to the parent). We affirm.
During the proceedings, the trial court also terminated the parental rights of the child's mother. She is not a party to this appeal.
I. BACKGROUND
In 2006, AK was born in Benin, a country in West Africa. Shortly after, respondent went to France to attend a university. When AK was approximately one year old, AK and his mother came to the United States. Respondent and AK's mother initially maintained contact, but AK's mother stopped communicating with him and changed her phone number some time after she moved to the United States.
AK was removed from his mother's care in March 2016 on the basis of improper supervision. Respondent's whereabouts were unknown at this time. With the assistance of AK's mother, the Department of Health and Human Services (DHHS) was able to locate respondent in March 2018. DHHS began working with International Social Service to conduct criminal and protective services background checks on respondent and to obtain a home study of his apartment in France. In June 2018, DHHS filed a Sanders petition against respondent.
In re Sanders, 495 Mich. 394, 413-420; 852 N.W.2d 254 (2014) (requiring separate adjudications for each parent).
Respondent came to the United States for a short period of time in July 2018 to visit AK and was present at the pretrial hearing at which he pleaded to certain allegations in the petition. Respondent admitted that a home study had not been completed and that he was unable to provide proper care and custody of AK at the time. Respondent then went back to France to continue his Ph.D. studies. At some point respondent sent AK a cell phone and the two maintained contact throughout the remainder of the case via text messages and e-mail. AK did not speak French, so respondent used Google Translate to communicate with him in English.
DHHS learned from International Social Service that it would cost $5,000 to complete the home study of respondent's apartment and translate the report. The caseworker's request for this funding was denied, and respondent was asked to research whether a local agency in France could complete the home study and to let the caseworker know if he encountered any issues. The caseworker testified that she communicated with respondent "[a]t least quarterly" about completing the home study.
A termination petition was filed in May 2019, alleging in part that respondent had still not completed the home study. After a hearing, the trial court dismissed the petition and changed the goal to a subsidized guardianship with AK's foster mother as the proposed guardian. The guardianship petition was denied, however, because adoption had not been ruled out. In September 2020, DHHS again filed a supplemental petition requesting the termination of respondent's parental rights on the basis that respondent had not completed the home study.
On the first day of the termination hearing in November 2020, the caseworker testified that she received an e-mail from respondent "this past Saturday" stating that he "looked for places to do [the home study]," but that he was unsuccessful in finding one. The caseworker said that this was the first time respondent reported back to her on his efforts to obtain a home assessment. The caseworker also testified that in the e-mail respondent stated that he could not provide housing for AK because he lived in a two-bedroom apartment with a roommate.
Respondent testified that he planned to graduate in January 2021 after he defended his thesis and that he would then find a full-time job. According to respondent, if AK came to live with him, the French government would increase his income to "make up for the new child he has in his family." Respondent also testified that he planned to obtain larger housing with government assistance if AK was placed in his care. Respondent initially testified that it would take a "few months to get everything . . . organized," i.e., finish school, get a job, and apply for larger housing. However, respondent later estimated it would take between six months to one year to work with the French government so that AK could stay with him.
The caseworker testified that although AK, now 14 years old, was open to a guardianship, he preferred to be adopted by his foster mother with whom he had lived with for the past three years. Respondent testified that although he preferred that AK be immediately placed in his care, he was open to a guardianship because AK purportedly wanted to spend the summers with him in France as a "transition period." Respondent conceded that AK preferred to stay in the United States because he did not speak French and all of his friends were in the United States. Respondent testified that there were bilingual schools in France, but they were in Paris, which was approximately five hours from his current residence, so AK would have to attend a French-speaking school.
After a three-day termination hearing, the trial court terminated respondent's parental rights in a written opinion and order. This appeal followed.
II. REASONABLE EFFORTS
Respondent first argues that the trial court clearly erred by finding that DHHS made reasonable efforts to reunify him with AK. We disagree.
We review for clear error a trial court's factual finding regarding whether DHHS made reasonable efforts to reunify the family. See In re Fried, 266 Mich.App. 535, 542-543; 702 N.W.2d 192 (2005). "A finding is clearly erroneous if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made." In re Schadler, 315 Mich.App. 406, 408; 890 N.W.2d 676 (2016) (quotation marks and citation omitted).
"[T]he [DHHS] has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights." In re Hicks/Brown, 500 Mich. 79, 85; 893 N.W.2d 637 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). As part of that duty, DHHS adopts a service plan aimed at rectifying the conditions that caused the child's removal. In re Fried, 266 Mich.App. 535, 542; 702 N.W.2d 192 (2005). Although DHHS "has a responsibility to expend reasonable efforts to provide services to secure reunification, there exists a commensurate responsibility on the part of the respondents to participate in the services that are offered." In re Frey, 297 Mich.App. 242, 248; 824 N.W.2d 569 (2012).
Respondent primarily argues that DHHS failed to make reasonable efforts because it did not pay for the home study to be completed. A home study was part of respondent's case service plan and he was repeatedly informed that one would need to be completed. After the caseworker was told that DHHS would not pay $5,000 for the assessment to be completed, she relied on respondent to see whether a local French agency could perform the home study. The caseworker told respondent to inform her of any barriers he was having securing the home study. It is unclear when respondent learned that home studies were not available in France, but he did not inform DHHS until shortly before the first day of the termination hearing. Overall, DHHS offered respondent help to ensure the home study was completed, but respondent failed to inform DHHS of any barriers regarding the completion of the home study until over two years after the initial disposition.
Respondent also argues that DHHS should have used a translator when communicating with him. The caseworker testified that respondent used Google Translate to translate her monthly e-mails to French and his responses to English. Respondent never told the caseworker that he had difficulty communicating with her or requested a translator. Accordingly, respondent fails to demonstrate clear error in the trial court's determination that DHHS made reasonable efforts to reunify him with AK.
III. STATUTORY GROUNDS
Next, respondent argues that the trial court clearly erred by finding statutory grounds to terminate his parental rights. We again disagree.
"This Court reviews for clear error the trial court's factual findings and ultimate determinations on the statutory grounds for termination." In re White, 303 Mich.App. 701, 709; 846 N.W.2d 61 (2014).
MCL 712A.19b(3)(c)(i) provides that the trial court may terminate a respondent's parental rights if "182 or more days have elapsed since the issuance of an initial dispositional order" and "[t]he 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."
In this case, the initial disposition order was entered on July 12, 2018, and respondent's parental rights were terminated on December 30, 2020. Therefore, more than 182 days had elapsed since the initial disposition order was entered.
The primary condition leading to adjudication was respondent's inability to provide proper care and custody of AK. At the time of termination, it was unclear whether respondent's home environment was appropriate since a home study of his two-bedroom apartment had not been completed. A background check for respondent's roommate had also not been completed. While respondent testified that he would be able care for AK, it did not appear there was enough space for AK to live with him in the two-bedroom apartment. In addition to his roommate, respondent's daughter stayed with him on alternating weekends. At one point, respondent offered that he and AK could stay with a neighbor if there was not enough room, which was not a long-term solution to the housing problem. Respondent also provided conflicting testimony as to how long it would take before he could obtain more suitable housing, estimating at one point that the process could take up to a year. Further, respondent had not taken any steps to secure documentation for AK's move to France, and AK was already 14 years old at the time respondent's parental rights were terminated.
In sum, respondent had not addressed the condition that led to his adjudication and there was no reasonable likelihood that he would be able to provide proper care and custody within a reasonable time considering AK's age. Accordingly, the trial court did not clearly err by concluding that termination was proper under MCL 712A.19b(3)(c)(i).
Because only one statutory ground is required to terminate a respondent's parental rights, we decline to address respondent's argument that the trial court erred by terminating his parental rights under MCL 712A.19b(3)(j). See In re Frey, 297 Mich.App. at 244.
IV. BEST INTERESTS
Finally, respondent argues that the trial court erred by determining that termination of his parental rights was in AK's best interests. Finding no clear error, we affirm the trial court's decision.
We review for clear error the trial court's determination regarding the child's best interests. In re Schadler, 315 Mich.App. at 408.
In determining the child's best interests, "the court may consider 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." In re Olive/Metts Minors, 297 Mich.App. 35, 41-42; 823 N.W.2d 144 (2012) (citations omitted). "The trial court may also consider . . . the children's well-being while in care[] and the possibility of adoption." In re White, 303 Mich.App. 701, 709; 846 N.W.2d 61 (2014).
The trial court acknowledged that respondent's bond with AK weighed against termination. However, the court found that multiple other factors strongly favored termination, including the likelihood of adoption and the child's preference for adoption. Again, it was unclear when respondent would be ready for AK to live with him, and AK was already 14 years old at the time of termination. AK had been living in the same foster home for three years and was bonded with his foster mother and other children in the home. Further, AK's foster mother was willing to adopt AK, and that was AK's preference as well. Indeed, respondent testified that AK wanted to remain in the United States. The trial court did not err by finding that these factors weighed heavily in favor of termination.
The trial court also considered AK's relationship with extended relatives on respondent's side and concluded that this factor did not support or weigh against termination. Respondent argues that this factor should have weighed against termination on the basis that "[t]hese relationships can get only stronger" if AK were placed in his care. However, AK has not met his relatives in Benin and it appears that he has only seen photographs of his half-sister who lives in France. Because AK did not have relationships with his extended relatives, the trial court did not err by concluding that this factor was neutral.
The trial court also concluded that the length of time AK had been in foster care, along with AK's need for permanency, stability, and finality, weighed in favor of termination. Although respondent argues that this factor should have weighed against termination because AK's mother was the reason he was absent for most of AK's life, this overlooks that in determining the best interests of the child the trial court should place its "focus on the child rather than the parent." In re Schadler, 315 Mich.App. 406, 411; 890 N.W.2d 676 (2016). Thus, the trial court correctly considered that AK had been in foster care for 57 months and therefore needed "permanency and a proper environment where he can be consistently cared for and safely parented."
Finally, we agree with respondent's argument that the trial court erred by concluding that his parenting ability supported termination. There was little to no testimony about respondent's parenting ability as it pertained to AK or his daughter. However, there were numerous other reasons to support the trial court's finding that terminating respondent's parental rights was in AK's best interests and for the reasons stated, that conclusion was not clearly erroneous. Accordingly, the court's finding as to respondent's parenting ability was a harmless error. See MCR 2.613(A); In re Utrera, 281 Mich.App. 1, 14; 761 N.W.2d 253 (2008).
Affirmed.