Opinion
No. 347457 No. 347731
08-13-2019
In re D. B. CISSE, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 15-520965-NA Before: LETICA, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM.
In these consolidated appeals, respondents appeal by right the trial court's order terminating their parental rights to the minor child, DC, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), (j) (reasonable likelihood of harm if child is returned to parent), and (k)(i) (abuse involving abandonment). We affirm.
In its oral ruling, the trial court limited its reliance on MCL 712A.19b(3)(k)(i) to termination of respondent-father's parental rights. The parties address the termination of respondents' parental rights consistent with the court's oral pronouncement. However, we note that the trial court's written order does not distinguish between respondents, merely directing that both respondents' parental rights be terminated under MCL 712A.19b(3)(c)(i), (g), (j), and (k)(i). "[A] court speaks through its written orders and judgments, not through its oral pronouncements." In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009). The trial court's order is, therefore, controlling on this issue. In any event, because we base our decision to affirm the trial court's order on its application of other statutory grounds, this discrepancy is immaterial to the outcome of this appeal.
"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 NW2d 61 (2014). A trial court's findings of fact are clearly erroneous if "we are definitely and firmly convinced that it made a mistake." Id. at 709-710. "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 proved by clear and convincing evidence." In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018), quoting In re Ellis, 294 Mich App 30, 32; 817 NW2d 11 (2011) (quotation marks omitted).
Both respondents' parental rights were terminated under MCL 712A.19b(3)(c)(i), (g), (j), and (k)(i), which provide for termination on the following grounds:
After a supplemental petition seeking termination of respondents' parental rights was filed, MCL 712A.19b(3)(g) was amended by 2018 PA 58, effective June 12, 2018. Although the termination of respondents' parental rights occurred after the effective date of the amendment, the trial court continued to rely upon the preamendment version of the statute. On appeal, the parties do not challenge the trial court's application of the prior statute. Accordingly, we will consider respondents' arguments under the prior version of the statute, and all citations of MCL 712A.19b(3)(g) refer to the statutory language as it read before 2018 PA 58 took effect.
MCL 712A.19b(3)(k)(i) was also amended by 2018 PA 58. We will likewise apply and refer to the preamendment version of the statute throughout this opinion.
(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, 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.
* * *
(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.
(k) The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:
(i) Abandonment of a young child.
In Docket No. 347457, respondent-mother first argues that the trial court erred in finding the statutory grounds for termination of her parental rights were established by clear and convincing evidence. We disagree.
This matter was brought before the court following respondent-mother's hospitalization for mental health treatment. During petitioner's investigation, respondent-mother made numerous unsubstantiated accusations that family members and neighbors were pedophiles and drug addicts who had assaulted her, attempted to rape both her and DC, had stolen things from her home, and had done terrible things to DC. Numerous services were provided to respondent-mother and, as the case progressed, she became more compliant in attending and participating in the services. However, after three years of varying levels of participation, it was clear at the termination hearing that respondent-mother had not benefited from the services. As this Court stated in In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005):
[I]t is not enough to merely go through the motions; a parent must benefit from the services offered so that he or she can improve parenting skills to the point where the children would no longer be at risk in the parent's custody. In other words, it is necessary, but not sufficient, to physically comply with the terms of a parent/agency agreement or case service plan.
Respondent-mother continued to deny her diagnosis of paranoid schizophrenia and alleged that she merely suffered from depression. Her thought processes were scattered and at times her statements were impossible to comprehend. Her therapists reported that her failure to acknowledge her serious mental illness and her resistance to the prescribed medication clearly demonstrated that she would not progress. Although she attended every visitation, respondent-mother was never permitted unsupervised visitation and, as a protection to DC, who was 12 at the time of the termination hearing, most of the visits were conducted with a therapist present. There was clear and convincing evidence to conclude that the conditions that led to the adjudication continued to exist and, after three years, there was no reasonable likelihood that they would be rectified within a reasonable time considering DC's age. MCL 712A.19b(3)(c)(i). Because "[o]nly one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights, even if the court erroneously found sufficient evidence under other statutory grounds," In re Ellis, 294 Mich App at 32, we need not address the trial court's rulings with respect to the remaining statutory grounds.
Respondent-mother also challenges the trial court's best-interest determination. Once the petitioner has established a statutory ground for termination by clear and convincing evidence, the trial court must find that termination is in the child's best interests before it can order termination of parental rights. MCL 712A.19b(5). Whether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). This Court reviews a trial court's decision regarding a child's best interests for clear error. In re Laster, 303 Mich App 485, 496; 845 NW2d 540 (2013). "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." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
The trial court must weigh the evidence available on the whole record in determining the child's best interests. In re Trejo, 462 Mich 341, 356; 612 NW2d 407 (2000). It may consider such factors as "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 NW2d 144 (2012) (citations omitted). Other considerations include the length of time the child has been in foster care or placed with relatives, the likelihood that "the child could be returned to her parent's home within the foreseeable future, if at all," and compliance with the case service plan. In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). In In re Moss, 301 Mich App at 88-89, the Court held:
[O]nce a statutory ground for termination is established, i.e., the parent has been found unfit, the focus shifts to the child and the issue is whether parental rights should be terminated, not whether they can be terminated. Accordingly, at the best-interest stage, the child's interest in a normal family home is superior to any interest the parent has.
DC was placed with his cousin and her family at the time of the termination hearing. "[B]ecause 'a child's placement with relatives weighs against termination under MCL 712A.19a(6)(a),' the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child's best interests." In re Olive/Metts Minors, 297 Mich App at 43, quoting In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). Relative placement is an "explicit factor to consider in determining whether termination was in the children's best interests." In re Mason, 486 Mich at 164.
Here, the record shows that the trial court considered all the necessary factors, including factors that supported continuation of respondent-mother's parental rights, namely, the strong bond between respondent-mother and DC and DC's placement with relatives. Nonetheless, after three years of services, respondent-mother had not even progressed to the point where she could be permitted unsupervised visitation. Respondent-mother's failure to acknowledge her mental illness was a substantial road block to reunification. Even though DC loved his mother and wanted to be able to visit her, he did not want to return to her care. See In re Medina, 317 Mich App 219, 238; 894 NW2d 653 (2016) (stating that a trial court may consider the best-interest factors set forth in MCL 722.23, including the reasonable preference of the child, during best-interest phase of child protective proceedings). DC needed permanency and stability. His emotional, academic, and physical needs were being met in his relative placement. The trial court did not clearly err in finding by a preponderance of the evidence that termination of respondent-mother's parental rights was in DC's best interests.
In Docket No. 347731, respondent-father challenges the trial court's determination that the statutory grounds for termination of parental rights under MCL 712A.19b(3)(c)(i), (g), (j), and (k)(i) were established by clear and convincing evidence. However, in presenting his claim of error, respondent-father couches his argument only in terms of refuting the trial court's finding of abandonment. "It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position." Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). "The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow." Id. The relevance of respondent-father's purported abandonment of DC is limited to the termination of his parental rights under MCL 712A.19b(3)(k)(i) (abuse involving abandonment). As such, we conclude that respondent-father has failed to adequately articulate a basis for reversing the trial court's ruling as it relates to MCL 712A.19b(3)(c)(i), (g), and (j). Respondent-father's failure to adequately challenge the remaining statutory grounds for termination effectively renders his challenge under MCL 712A.19b(3)(k)(i) moot because only one statutory ground need by established by clear and convincing evidence. In re Ellis, 294 Mich App at 32. See also Garrett v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016) ("A matter is moot if this Court's ruling cannot for any reason have a practical legal effect on the existing controversy.") (Quotation marks and citation omitted).
Respondent-father does not challenge the trial court's best-interest analysis.
Furthermore, while respondent-father chose to focus his appellate argument on the issue of abandonment, it is evident from the record that the trial court did not err by concluding that termination of respondent-father's parental rights was warranted under MCL 712A.19b(3)(c)(i). When this matter came into court, respondent-father had acknowledged that he had only seen DC "two or three times in his entire life and he had not seen the child recently." He further reported to petitioner that, because of his advanced age, he was unable to care for DC. They had no relationship, and DC did not know his father. Given the basis for the adjudication relative to respondent-father, termination of his parental rights under MCL 712A.19b(3)(c)(i) also implicates MCL 712A.19b(3)(g) (failure to provide proper care and custody).
A parent's failure to comply with his or her service plan is evidence that the parent will not be able to provide a child with proper care and custody. In re White, 303 Mich App at 710. Respondent-father's service plan provided that he had to maintain stable housing and a legal source of income; take parenting classes; provide medical information regarding his inability to care for DC; and participate in case conferences, court hearings, family team meetings, and educational, medical, dental, and therapeutic planning for DC. Petitioner also offered weekly visitation with DC, but agreed to monthly visitation at respondent-father's request.
Although respondent-father provided medical insurance and some financial support to DC during the pendency of this case, he did not otherwise participate in any meaningful way. Respondent-father was terminated from parenting classes on two occasions, he was unemployed by the time of the termination hearings, and there is no indication that he provided medical documents to substantiate various health problems he cited as interfering with his involvement. Respondent-father rarely attended court hearings and demonstrated a pattern of evading visitation with DC. In fact, over the three-year pendency of this case, respondent-father's first and only visitation with DC did not occur until sometime between August and November 2018, at which point the hearings regarding the supplemental petition to terminate respondents' parental rights had already begun. After this single visit, respondent-father did not attend the final hearing at which his parental rights were terminated. Given respondent-father's substantial nonparticipation in DC's life and these proceedings, the trial court did not clearly err by finding that petitioner established grounds for termination of respondent-father's parental rights under MCL 712A.19b(3)(c)(i) and (g).
Respondent-father sometimes expressed interest in visiting DC, but repeatedly failed to provide petitioner with times he would be available to visit, cancelled or failed to attend scheduled visits, and otherwise offered excuses for why visitation could not take place. For instance, when a foster-care specialist offered to arrange visitation in respondent-father's home, respondent-father indicated that there was no room.
Affirmed.
/s/ Anica Letica
/s/ Michael J. Kelly
/s/ Mark T. Boonstra