Opinion
No. 332511
01-19-2017
In re CHAPMAN, Minors.
UNPUBLISHED Shiawassee Circuit Court Family Division
LC No. 10-012813-NA Before: O'CONNELL, P.J., and MARKEY and MURRAY, JJ. PER CURIAM.
Respondent appeals by right the termination of his parental rights to his three children under MCL 712A.19b(3)(c)(i) (no reasonable likelihood that the conditions that led to adjudication would be timely rectified), MCL 712A.19b(3)(g) (failure to provide proper care or custody for the child), and MCL 712A.19b(3)(j) (reasonable likelihood that the child will be harmed if returned to the parent's home). We affirm.
I. FACTS AND PROCEDURAL HISTORY
The Department of Health and Human Services (DHHS) initially petitioned to remove respondent's children from the home of their mother in 2010 because of her continuing heroin use and failure to participate in services. Respondent was in jail awaiting trial at the time and was under a no-contact order with respect to the children's mother as a result of domestic violence. Respondent's criminal history included larceny in 2006, heroin use in 2009, and disorderly conduct in 2010. The petition indicated that respondent planned to contact Child Protective Services (CPS) to arrange services through the DHHS when he knew the terms of his probation; however, he had not done so several weeks later. After a dispositional hearing, both respondent and the children's mother pleaded no contest to allegations under MCL 712A.2(b)(1) regarding failure to provide the children necessary care and support and MCL 712A.2(b)(2) that the home environment was unfit, permitting the court to exercise jurisdiction over the children.
After respondent was released from jail in December 2010, his treatment plan required him to attend visits with the children, complete parenting classes, attend substance abuse therapy, be tested for drugs, and participate in an anger-management program, which respondent claimed to have already completed but was unable to provide substantiating documentation. By June 2011, respondent had been evicted from his mother's home, had not completed substance abuse therapy, and had only completed one of nine scheduled drug screens, which tested positive for opiates. Soon thereafter, respondent was again in jail, this time for failing to pay child support for one of his other children. Although he had said he would participate in services when he was released from jail, respondent never provided an updated address and did not return phone calls from his caseworker. The children were returned to the care and custody of their mother in November 2011. A report prepared in February 2012 indicated that respondent had not contacted the DHHS either for services or for visits with his children.
The DHHS again petitioned to remove the children from their mother's care on September 2014, because she had returned to regular heroin use, refused to contact the DHHS regarding her children's safety, and refused to participate in services. Respondent had recently begun serving a prison sentence after having pleaded guilty in 2012 to a charge of breaking and entering a building. The petition also alleged that respondent had not made progress with services while the children were in foster care before the previous CPS case was closed in February, and the foster-care worker confirmed that as of July 2014 respondent was not compliant with services. Jurisdiction over the children was established in January 2015, after both parents entered no-contest pleas in response to the allegations in the petition.
After a hearing, the trial court concluded that the evidence established a ground for termination under MCL 712A.19b(3)(g) because respondent had "failed to provide[,] even prior to his incarceration, proper care and custody for the children" and there was "no reasonable expectation that he would be able to do so within a reasonable time considering the age of the children." With respect to respondent's imprisonment, the court stated that although it could not and did not "make that a basis of the termination," it also could not "ignore the reality" of his "history of incarceration" in light of its duty to focus on the children, who "have been victims of trauma by the conduct of . . . that in which they have lived."
The court also found that there was a basis for termination under MCL 712A.19b(3)(j):
[I]f I take [respondent] at his word and, you know, arguably I have no reason not to, you know, that is still somewhat of a mystery. But, . . . he certainly couldn't be reunited with them at this point and even after the first parole date, he could be put into a half-way house and have . . . no basis to provide care for them. And . . . we don't know where he'll be, you know, . . . on the outside world . . . as the ability to maintain his sobriety.
Finally, the court concluded that there was clear and convincing evidence to establish that the conditions that led to the removal continued to exist more than 182 days after the initial order of disposition and that there was no reasonable likelihood they would be rectified considering the ages of the children. MCL 712A.19b(3)(c)(i).
The court concluded that, "for similar reasons" as those it gave to support the statutory bases for termination, it was in the best interests of the children to terminate respondent's parental rights, explaining that "the children are in need of some form of permanency, reliability, a drug free environment" that "will be without major upset and with the adult guidance of somebody to whom they can continually throughout their life rely upon for care, advice, and counsel." The court terminated both parents' rights, and respondent appealed.
Respondent is not challenging the court's best-interest finding on appeal. --------
II. ANALYSIS
Defendant argues that the trial court erred in finding that a statutory basis for terminating his parental rights was established. The trial court's factual findings supporting a decision to terminate parental rights are reviewed for clear error. MCR 3.977(K); In re Gonzales/Martinez, 310 Mich App 426, 430; 871 NW2d 868 (2015). 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 was made. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010).
Under MCL 712A.19b(3)(c)(i), the court may terminate a person's parental rights if "182 or more days have elapsed since the issuance of an initial dispositional order" and the court finds by clear and convincing evidence that "[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." The conditions that led to the adjudication included the fact that respondent had not made progress with services while the children were in foster care before the previous CPS case was closed in February 2012, and remained noncompliant with services as of September 2014, an allegation to which respondent pleaded no contest.
In finding that this ground for termination had been established, the trial court cited respondent's numerous criminal convictions, his drug use, and the amount of time he had spent in jail or prison since 2010. The court opined that respondent's criminal behavior demonstrated an "inability to provide long term stable care for the children even outside of his current situation." The court concluded that respondent had "failed to provide[,] even prior to his incarceration, proper care and custody for the children" and there was "no reasonable expectation that he would be able to do so within a reasonable time considering the age of the children."
As respondent correctly argues, "[t]he mere present inability to personally care for one's children as a result of incarceration does not constitute grounds for termination," In re Mason, 486 Mich at 160, nor does a person's criminal history alone justify termination except under certain circumstances not applicable to this case, see id. at 165, citing MCL 712A.19a(2); MCL 722.638(1) and (2). But the trial court expressly acknowledged that respondent's imprisonment could not form the basis for its ruling. Nonetheless, the court stated that it could not ignore his "history of incarceration" in light of its duty to focus on the children.
Moreover, as the court's findings make clear, the court's conclusion that respondent had failed to provide proper care and custody for the children was not limited to the interval encompassing his most recent incarceration; rather, it stretched back to the children's initial removal in 2010, after which respondent had the opportunity to participate in services but, as his no-contest plea effectively acknowledged, he failed to comply with or benefit from services after his release from jail in December 2010, which prevented the children from being returned to his care when the CPS case was closed. The court commended respondent for his participation in programs and services while in prison, but reasonably concluded that his "criminality" demonstrated an "inability to provide long term stable care for the children even outside of his current situation." Moreover, the record does not establish that respondent had effectively planned or was prepared to care for the children upon his release.
MCL 712A.19b(3)(g) having been established, we need not consider respondent's challenges to the other two statutory grounds found by the court. See In re Frey, 297 Mich App 242, 244; 824 NW2d 569 (2012) (holding that only one statutory ground need be established to terminate parental rights).
We affirm.
/s/ Peter D. O'Connell
/s/ Jane E. Markey
/s/ Christopher M. Murray