Opinion
No. 349473
01-28-2020
In re A. SCHEPPERLY, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Antrim Circuit Court Family Division
LC No. 18-008045-NA Before: O'BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child under MCL 712A.19b(3)(c)(i), (g), and (i). We affirm.
The child's father voluntarily released his parental rights to the child and is not a party to this appeal. The child's half-brother, with whom the child had a close bond, was also significantly involved in the proceedings, but the half-brother is not related to respondent and is not at issue in this appeal.
I. BACKGROUND
The minor child was removed from her parents' care in May 2018, because of her parents' substance abuse and domestic violence. Respondent-mother was addicted to methamphetamines and struggled with this addiction throughout the proceedings. Her parental rights to another child were previously terminated in Alabama in January 2018, on the basis of abandonment and failure to perform the duties of a parent.
Parental rights may not be terminated on the basis of being a victim of domestic violence, but it appears that both parents were perpetrators. See In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011). In any event, domestic violence played no ultimate role in the termination of respondent's rights beyond the initial removal.
On June 27, 2018, respondent-mother entered a plea of admission to allow the trial court to assume jurisdiction over the child. At that time, respondent-mother was homeless, unemployed, and living in her car. Petitioner, the Department of Health and Human Services (DHHS), prepared a parent-agency treatment plan (PATP), which respondent-mother signed and acknowledged in court that she was aware of the requirements of the plan. Among other things, the PATP required respondent-mother to complete a substance-abuse assessment, obtain a psychological evaluation, and participate in random drug testing.
Despite referrals by DHHS, respondent-mother did not complete any of the requirements of her PATP. After she entered her plea of admission in this case, she pleaded guilty to attempted perjury in an unrelated criminal case, but she then failed to appear for her sentencing and absconded from the criminal proceedings until she was apprehended in January 2019. In February 2019, she was sentenced to 11 months in jail for her attempted perjury conviction. After her incarceration, she began participating in services that were available to her in jail, but in March 2019 DHHS filed a supplemental petition to terminate her parental rights. Respondent-mother admitted at the termination hearing in April 2019 that she did not participate in any services before her incarceration in January 2019. She also conceded that she was in denial about the severity of her addiction, which she acknowledged impacted her ability to effectively and safely parent her child. Because of her failure to provide a clean drug screen and appear at parenting time, she had not visited with her child since May 9, 2018.
The trial court found that grounds for terminating respondent-mother's parental rights were established under MCL 712A.19b(3)(c)(i), (g), and (i), and that termination was in the child's best interests. In addition to its findings regarding the statutory grounds, the trial court observed that the child had no bond with respondent, but did have "an extreme need for stability and permanency" that respondent was "unable to provide." Accordingly, the court entered an order terminating her parental rights to the child. This appeal followed.
II. DUE PROCESS AND REASONABLE EFFORTS
Respondent-mother argues that her right to due process was violated because DHHS did not expend reasonable efforts to reunify her with her child and did not provide her with a meaningful opportunity to participate in reunification services. We disagree.
A. PRESERVATION OF THE ISSUES
For an issue to be preserved for this Court's review, it must be raised in the trial court and pursued on appeal, irrespective of whether it was decided by the trial court. Peterman v Dep't of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). Respondent-mother claims that she preserved this issue by raising it during closing arguments at the termination hearing. The record discloses that counsel for respondent-mother asked the trial court to provide respondent-mother with more time to demonstrate that she could safely and effectively parent her child. However, counsel did not challenge the reasonableness of DHHS's reunification efforts or otherwise raise a due-process issue. Accordingly, these issues have not been preserved.
B. STANDARDS OF REVIEW
Generally, this Court reviews constitutional claims de novo. In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019). The trial court's findings regarding the reasonableness of the DHHS's efforts to reunify a family are generally reviewed for clear error. In re Smith, 324 Mich App 28, 43; 919 NW2d 427 (2018). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." Id. (quotation omitted). However, unpreserved issues are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). An error affects substantial rights if it causes prejudice, i.e., it affects the outcome of the proceedings. Id. at 9.
C. ANALYSIS
Our Supreme Court has recognized that parents have a "fundamental liberty interest" in the care, custody, and management of their children, which is protected by the Fourteenth Amendment of the United States Constitution and article 1, § 17 of the Michigan constitution. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). Before the state may terminate an individual's parental rights, it must "provide the parent[] with fundamentally fair procedures[,]" and must satisfy the individual's right to procedural due process. Id. at 91-92, quoting Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). The touchstone of due process is the opportunity to be heard, which includes proper notice of that opportunity. In re Rood, 483 Mich at 92 (opinion by CORRIGAN, J.), citing Dow v Michigan, 396 Mich 192, 205-206; 240 NW2d 450 (1976).
When a child protective proceeding is initiated, "[t]he state must make reasonable efforts to notify [a parent] of the proceedings and allow [the parent] a meaningful opportunity to participate." In re Rood, 483 Mich at 122 (opinion by CORRIGAN, J.). DHHS also bears the onus of expending reasonable efforts to reunify a family and to "rectify the conditions that led to the initial removal." In re Smith, 324 Mich App at 43. In In re Hicks, 500 Mich 79, 85-86; 893 NW2d 637 (2017), our Supreme Court explained:
Under Michigan's Probate Code, the Department has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). As part of these reasonable efforts, the Department must create a service plan outlining the steps that both it and the parent will take to rectify the issues that led to court involvement and to achieve reunification. MCL 712A.18f(3)(d) (stating that the service plan shall include a "[s]chedule of services to be provided to the parent . . . to facilitate the child's return to his or her home").The state is not relieved of these duties merely because a parent is incarcerated. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
This case is significantly distinguishable from In re Mason. In that case, the respondent-father was incarcerated at the time the minor children were removed from their mother's custody, and because DHHS knew he would remain incarcerated for another two years, it essentially excluded him from the proceedings. In re Mason, 486 Mich at 148-150. Although a service plan was prepared, it was unclear whether the father had ever been provided with a copy, and there was no evidence that the foster care worker complied with DHHS policy by speaking to the prison social worker to see what services could be provided to the father in prison. Id. at 156-157. The DHHS instead focused its efforts on reunifying the children with their mother, and the trial court and DHHS never considered the father as a future placement for his children, or attempted to provide him with services. The Supreme Court held that these deficiencies disregarded "[the] respondent's statutory right to be provided with services," and that it was clear error to "fail[] to involve or evaluate respondent, but then terminate[] his rights, in part because of his failure to comply with the service plan, while giving him no opportunity to comply in the future." Id. at 159 (citation omitted). The Court explained that a parent's parental rights may not be terminated on the basis of a lack of participation where the court or petitioner impeded or precluded that participation. Id. at 159-160.
Although respondent-mother discusses the requirements for termination under MCL 712A.19b(3)(h) (parent imprisoned and child will be deprived of a normal home for a period exceeding 2 years), which the Court addressed in In re Mason, 486 Mich at 160-164, respondent-mother's parental rights were not terminated under this statutory subsection.
In this case, the record does not support respondent-mother's arguments that she was not afforded a meaningful opportunity to participate in services, or that DHHS failed to meet its obligation to provide reasonable reunification services. On the contrary, a PATP was prepared for respondent-mother and she acknowledged on the record on June 27, 2018, that she had received the plan and understood what she was required to do to satisfy the plan requirements. Thereafter, despite referrals by DHHS, respondent-mother made no effort to comply with the requirements of her PATP. In particular, she did not participate in a psychological evaluation, drug screening, or a substance-abuse assessment, and she failed to visit her child. In re Mason holds that it is improper to fault a parent for not participating in proceedings or services where the court or petitioner failed to facilitate that participation, or possibly where the parent was prevented from participating due to circumstances beyond his or her control. Nothing in In re Mason suggests that it is improper to hold a parent to the natural consequences of not participating for other reasons.
At a review hearing on September 26, 2018, respondent-mother was not physically present, but she participated by telephone. The caseworker, Beverly Howell, stated that she had not been able to reach respondent-mother by telephone using the various numbers respondent-mother had provided, and she did not know where respondent-mother was then living. Further, respondent-mother had not appeared for her sentencing in a criminal matter. The trial court encouraged respondent-mother to turn herself in to the police so that she could start to meaningfully participate in services to reunify her with her child. At that hearing, Howell emphasized that if respondent-mother were incarcerated, she could still participate in services to help reunify her with her child. Howell explained that she would contact the jail to see what services were available and would review the available services with respondent-mother. Although respondent-mother expressed her intent to turn herself in, she never did so, nor did she otherwise participate in services that had been made available to her. By the time respondent-mother was apprehended by the police and jailed several months later in January 2019, petitioner had already decided to pursue termination of her parental rights.
Although respondent-mother portrays herself as having been eager to participate in services while incarcerated, and she blames DHHS for her not doing so, she never notified Howell of her arrest or that she was in jail. It was not until the end of February 2019 that Howell learned from respondent-mother's counsel, who in turn learned from respondent-mother's grandfather, that respondent-mother was in jail. Additionally, the record indicates that Howell investigated the services that respondent began participating in at the jail, and determined that respondent-mother was not benefiting from them because she could not maintain her emotional stability to get along with other inmates and had to be segregated from the general population.
Although DHHS had a responsibility to make reasonable efforts to reunify respondent-mother with her child, respondent-mother also had a responsibility to "cooperate and participate in the services, . . . [and] benefit from them." In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014). Howell provided respondent-mother with a PATP, respondent-mother acknowledged her understanding of the requirements of that plan at the time it was signed, and referrals were made for respondent-mother to participate in services, but respondent-mother made no effort to participate in services during the seven-month period before her arrest, and then did not notify DHHS of her incarceration. Howell did not seek out additional services for respondent-mother in the county jail after learning about her incarceration because she had not participated in any services up until that point, and DHHS had already decided to seek termination of her parental rights.
Contrary to respondent-mother's assertions, the present case is not one in which DHHS abdicated its responsibility to provide her with fair process or to engage her to meaningfully participate in services before parental rights were terminated. On the contrary, a PATP was created, respondent-mother signed it, and services were offered, but respondent-mother instead chose over a span of seven months to not participate in services, forgoing parenting time with her child in the meantime while abusing methamphetamines. During most of that time, respondent-mother also chose not to maintain contact with DHHS. Unlike in In re Mason, in which DHHS failed to engage the respondent-father in services because of his incarceration, DHHS did repeatedly attempt to engage respondent-mother to meaningfully participate in reunification services. DHHS also stood ready to provide services in the event respondent-mother was incarcerated. Instead, she chose to remain a fugitive and not participate in services that were made available to her. By the time respondent-mother was incarcerated involuntarily, and Howell determined that she was not benefiting from the services she was receiving in jail, the DHHS had already filed the supplemental petition for termination of her parental rights. Under these circumstances, there is no merit to respondent-mother's contentions that she was denied due process by not being given a meaningful opportunity to participate in services, or that DHHS did not expend reasonable efforts aimed at reunifying her with her child.
III. STATUTORY GROUNDS
Respondent-mother next argues that the trial court erred by finding that clear and convincing evidence supported termination of her parental rights under MCL 712A.19b(3)(c)(i), (g), and (i). We disagree.
A. STANDARD OF REVIEW
This Court reviews for clear error the trial court's determination that a statutory ground for termination has been established by clear and convincing evidence. In re Smith, 324 Mich App at 46.
B. ANALYSIS
The trial court terminated respondent-mother's parental rights under MCL 712A.19b(3)(c)(i), (g), and (i), which 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.
* * *
(i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.
The trial court did not clearly err by finding that the evidence supported termination of respondent-mother's parental rights under MCL 712A.19b(3)(c)(i). At the time of termination in June 2019, more than 182 days had elapsed since issuance of the initial dispositional order on June 27, 2018. The conditions that led to the adjudication were respondent-mother's substance abuse, lack of housing, and unemployment. At the time of the termination hearing, respondent-mother was still struggling with her addiction, she did not have suitable housing, and she was not employed. Although respondent-mother was incarcerated at the time her parental rights were terminated, she was not incarcerated between the time of the child's removal in May 2018 and her arrest in January 2019. During this intervening period, respondent-mother's whereabouts were unknown, she did not keep in contact with DHHS staff, she ignored the trial court's directive to turn herself in to authorities, and she did not participate in any services that were offered to her. In particular, she repeatedly missed appointments for a psychological evaluation, she did not complete a substance-abuse assessment, and did not participate in drug screening. Her failure to provide a clean drug screen also prevented her from visiting with her child. While respondent-mother testified that she was sober while incarcerated, she still had not participated in necessary services aimed at prolonging and maintaining sobriety, such as inpatient or outpatient rehabilitation treatment. Therefore, we agree with the trial court that respondent-mother failed to rectify the conditions that led to the adjudication.
The trial court also did not clearly err by finding that there was no reasonable likelihood that the conditions would be rectified within a reasonable time considering the child's age. Respondent-mother criticizes the trial court for relying on what she characterizes as "speculative testimony" that she could not stay clean and parent her child after her release from jail. Before she was incarcerated, however, respondent-mother acted irresponsibly and in a manner not conducive to parenting, she was not addressing the issues that led to the adjudication, and she deliberately disobeyed the court's directive to turn herself in to the authorities. She remained a fugitive until her arrest in January 2019. She failed to secure housing before her incarceration, she did not inform DHHS staff of her whereabouts, and because she was addicted to drugs and waiting to go to jail she was not actively seeking employment. Respondent-mother had a demonstrated and established pattern of ignoring the requirements of her service plan, disobeying directives of the trial court, and failing to maintain contact with DHHS, and failing to maintain sobriety. Thus, the trial court did not clearly err by finding that it was not reasonably likely that respondent-mother could radically alter her established pattern of conduct sufficiently to rectify the conditions that led to the adjudication within a reasonable time, considering the child's age of six years and need for stability and permanency.
In sum, respondent-mother had ample time and opportunity to avail herself of the multitude of services that DHHS offered her even before she was incarcerated, but she chose not to do so. Accordingly, the trial court did not err by finding that termination of respondent-mother's parental rights was justified under MCL 712A.19b(3)(c)(i). See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (recognizing that termination is appropriate under MCL 712A.19b(3)(c)(i) when "the conditions that brought [the child] into foster care continue to exist despite time to make changes and the opportunity to take advantage of a variety of services" (citation and quotation marks omitted)). Because only one statutory for termination need be established by clear and convincing evidence, In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011), it is unnecessary to address the additional grounds under which respondent-mother's parental rights were terminated.
IV. BEST INTERESTS
Respondent-mother also argues that the trial court erred by finding that termination of her parental rights was in the child's best interests. We disagree.
A. STANDARD OF REVIEW
This Court reviews the trial court's determination regarding a child's best interests for clear error. In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016).
B. ANALYSIS
MCL 712A.19b(5) provides:
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."Whether termination of parental rights is in a child's best interests is determined by a preponderance of the evidence." In re Kaczkowski, 325 Mich App 69, 78; 924 NW2d 1 (2018) (quotation omitted). When determining a child's best interests,
[f]actors to be considered 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. A court may also consider whether it is likely that the child could be returned to her parents' home within the foreseeable future, if at all. [Id. (citations and quotation marks omitted).]
Initially, respondent-mother complains that in its best-interest analysis, the trial court improperly focused on respondent-mother's circumstances rather than the circumstances of the child. As respondent-mother observes, when considering best interests, the trial court should focus on the child, not the parent. In re Schadler, 315 Mich App at 411. However, the circumstances surrounding respondent-mother are certainly relevant to the circumstances that would affect a child placed in respondent-mother's care. Furthermore, the record clearly shows that the trial court properly understood its obligation to focus on the child's circumstances in determining the child's best interests. Indeed, during the termination hearing, the trial court inquired whether the child's counselor, Kathryn Hughey, had any opinion regarding whether termination of respondent-mother's parental rights was in the child's best interests. The court stated that it was interested in Hughey's recommendations regarding the child's best interests, and invited petitioner to either introduce Hughey's report or testimony on the subject. Thereafter, Hughey offered her opinion that termination of respondent-mother's parental rights would be in the child's best interests because of the child's significant need for permanency. Although the court also considered respondent-mother's serious drug addiction, it did so in the context of considering how this issue impacted the child's overriding needs for permanency, finality, stability, and safety. The trial court's analysis was proper.
Respondent-mother next argues that the trial court erred when considering the child's relative placement with her paternal grandparents. "[A] child's placement with relatives weighs against termination[,]" and is "an explicit factor to consider" in the best-interest analysis. In re Mason, 486 Mich at 164. Respondent-mother does not contend that the trial failed to consider the child's relative placement, but rather criticizes the manner in which the trial court questioned Hughey. Respondent argues that the court erred by considering the child's relative placement as a factor that weighed against preserving respondent-mother's parental rights. Specifically, after counsel for respondent-mother emphasized during closing argument that the child was in a relative placement with her paternal grandparents, the trial court recalled Hughey to inquire whether the child's relative placement with her grandparents and a sibling would be a potential "road block" for her to be able to talk about respondent-mother in therapy or to achieve permanency with someone else. Hughey responded that she did not believe that the child's placement with her paternal grandparents would inhibit her ability to obtain another permanent placement. The court then asked if the child's placement with her grandparents would impede her from "trying to reach some solution with her mother[.]" Hughey noted that respondent-mother had not been available to the child for several months, the child was fortunate to have her grandparents to care for her, and that if the child were adopted she could still maintain her relationship with her paternal grandparents.
See footnote 1.
We find no impropriety in this line of questioning. Pursuant to its obligation to determine the child's best interests, the trial court was justified in inquiring whether allowing the child to remain in her relative placement was in her best interests, or whether it would at some point inhibit her ability to obtain a permanent placement. Contrary to what respondent-mother asserts, the trial court's colloquy with Hughey did not indicate that the court "consider[ed] relative placement as weighing . . . against [respondent-mother]." Moreover, although relative placement does weigh against termination of parental rights, the record reflects that the child's paternal grandparents, because of their advanced age, would not be able to continue to care for the child and they supported her placement in a permanent home. The fact that the child's placement with her paternal grandparents was not a long-term option diminishes the weight of that placement as a factor weighing against termination.
We note that although placement with a relative generally weighs against termination, there could be any number of possible reasons why placement with a particular relative might weigh in favor of termination. For example, domestic abusers often learn their violent tendencies from their own upbringings, in which case a child would obviously be harmed rather than helped by simply being moved from one abuser to another. The record here indicates that the child's paternal grandparents were considered a healthy placement, albeit not a permanent placement. Nevertheless, the significance of a child's placement with a relative should not be mechanically applied without performing a case and context specific analysis of the particular relative at issue.
Finally, respondent-mother argues that the trial court erred in its consideration of the child's bond with respondent-mother. The gravamen of respondent-mother's argument is that the trial court gave undue weight to the testimony of Howell, who characterized the bond between respondent-mother and the child as "deteriorating," rather than that of Hughey, who stated that the child loved and missed respondent-mother. We find no serious inconsistency between Howell's and Hughey's testimonies. Although Hughey testified that the child carries a photograph of respondent-mother with her, and expresses sadness that she cannot see respondent-mother, she also agreed that "there is [sic] definitely some attachment issues there." Hughey went on to observe that it was "extremely significant" that the child did not have a solid attachment to either of her parents. The trial court's conclusion that there were significant issues undermining the bond and attachment between the child and respondent-mother is supported by the testimony of both Hughey and Howell. Respondent-mother's argument that the court gave undue weight to Howell's testimony is unavailing.
In sum, the trial court did not clearly err by finding that termination of respondent-mother's parental rights was in the child's best interests.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola