Opinion
No. 336173
06-20-2017
In re T. D. JONES, Minor.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 16-844385-NA Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ. PER CURIAM.
Respondent-mother D. Wilson appeals as of right a circuit court order terminating her parental rights pursuant to her child, TDJ, pursuant to MCL 712A.19b(3)(b)(i), (g), (i), (j), and (k)(iii). We affirm.
I. STANDARD OF REVIEW
Respondent argues on appeal that the trial court erred both in finding that a statutory ground for termination was established by clear and convincing evidence, and in finding that termination of her parental rights was in the child's best interests. She also argues that the circuit court's reliance on MCL 712A.19b(3)(k)(iii) violated her due process rights by focusing solely on the terminations of her parental rights to TDJ's siblings.
The petitioner bears the burden of proving a statutory ground for termination by clear and convincing evidence. MCL 712A.19b(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). Once the petitioner has proven a statutory ground, the circuit court must order termination if "termination of parental rights is in the child's best interests." MCL 712A.19b(5). This Court reviews for clear error a circuit court's decision to terminate parental rights. MCR 3.977(K). The clear error standard controls this Court's review of "both the court's decision that a ground for termination has been proven by clear and convincing evidence and . . . the court's decision regarding the child's best interest." In re Trejo, 462 Mich at 356-357. A decision qualifies as clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). Clear error signifies a decision that strikes this Court as more than just maybe or probably wrong. In re Trejo, 462 Mich at 356. This Court "give[s] deference to the trial court's special opportunity to judge the credibility of the witnesses." In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009).
Respondent did not raise her constitutional challenge to MCL 712A.19b(3)(k)(iii) in the trial court. Therefore, that issue is unpreserved and we review that claim only to determine whether a plain error affected respondent's substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286 (2009).
II. STATUTORY GROUNDS FOR TERMINATION
The circuit court found that statutory grounds for terminating respondent's parental rights were established under MCL 712A.19b(3)(b)(i), (g), (i), (j), and (k)(iii).
A. MCL 712A.19b(3)(b)(i)
MCL 712A.19b(3)(b)(i) authorizes termination of parental rights when
[t]he child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent's act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent's home.
First, the court did not clearly err in finding that clear and convincing evidence established that TDJ's six siblings suffered physical abuse or injury inflicted by respondent. In September 2007, the circuit court terminated respondent's parental rights to TDJ's siblings in light of respondent's physical abuse and failure to benefit from services. In August 2007, respondent pleaded guilty to first-degree child abuse, MCL 750.136b(2), and third-degree child abuse, MCL 750.136b(5), which established her guilt beyond a reasonable doubt.
There was also, no clear error in the court's determination that clear and convincing evidence also proved the existence of a reasonable likelihood "that [TDJ] will suffer from injury or abuse in the foreseeable future if placed in the parent's home." MCL 712A.19b(3)(b)(i). We are mindful that prior to her imprisonment a 2007 psychological evaluation concluded that "even with consistent treatment, [the] prognosis for safety, security, and appropriateness in parenting was quite poor which left the children at risk for continued abuse and neglect when in [respondent's] care." However it is more important that at the adjudication trial and dispositional hearing for TDJ, Children's Protective Services (CPS) investigator, Gina Bowman, testified that in July 2016, respondent conceded that she had "a CPS history involving child abuse," but "was unclear on the details as [to] why she was criminally charged and why . . . CPS became involved . . . [before] her conviction[s]" in 2007. Respondent recalled only that "her seven-year-old child received a broken arm because [respondent] accidentally fell on top of her," which Bowman learned was incorrect. Thus the respondent failed to acknowledge that she had not only broken one child's arm with a pole but had also given her children black eyes and once threw a child down a flight of stairs. The court reasonably accepted Bowman's testimony that in light of the respondent's failure to recognize her past behavior despite the extensive services that petitioner previously provided respondent, Bowman disbelieved that any additional services would assist respondent in improving her parenting skills, and TDJ remained at risk of harm in respondent's custody.
The uncontrolled rage that led to the termination of the other children continued in respondent's life up until the current case. Respondent conceded that she and TDJ's father routinely argued and the police had been called to her residence more than three times in 2016. According to Bowman, the father told her that on one occasion when the police had been called, respondent had tried to choke the father, who was holding TDJ, and also grabbed at the father while he descended a flight of stairs carrying TDJ. Respondent had not returned to individual therapy since her release from prison to obtain assistance with her anger issues. Finally respondent had not taken any steps toward fiscal stability since her release from prison. She neither sought employment nor applied for social security or any other governmental support.
We detect no clear error in the circuit court's determination that the circumstances justified termination pursuant to MCL 712A.19b(3)(b)(i).
B. MCL 712A.19b(3)(g)
MCL 712A.19b(3)(g) authorizes a circuit court to terminate parental rights "if the court finds, by clear and convincing evidence," that "[t]he 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." There was no clear error in the court's determination that clear and convincing evidence established respondent's failure to properly care for, protect, and supervise TDJ, and the unlikelihood that she will be able to improve her parenting skills within a reasonable time. In re JK, 468 Mich at 213-214.
The testimony given at trial established that respondent did not have employment or an income source besides less than $200 in food stamp assistance per month. The testimony also showed that the father had provided for all of TDJ's physical needs absent family court intervention. Much of the evidence discussed in relation to MCL 712A.19b(3)(b)(i) also applies to MCL 712A.19b(3)(g), including that respondent and the father argued frequently, that the police had been called to respondent's residence on more than three occasions, that the father reported that respondent had tried to choke him while he was holding TDJ, and had also grabbed at him while he descended a flight of stairs carrying TDJ. Respondent suffered from two longstanding, serious mental illnesses, bipolar disorder and schizoaffective disorder, which caused her to have difficulty maintaining mood stability. In conclusion, clear and convincing evidence showed that respondent had failed to provide proper care and custody for TDJ by failing to provide financial support, exposing him to domestic violence, and failing to significantly improve her ability to parent in light of her mental disorders.
There was no error in the court's ruling that it was unlikely that respondent would be able to rectify her parental shortcomings within a reasonable time in light of TDJ's very young age. MCL 712A.19b(3)(g); In re LE, 278 Mich App 1, 28; 747 NW2d 883 (2008). Abundant evidence established that respondent had a long history of inflicting severe physical abuse on TDJ's siblings between 1996 and 2006, and respondent failed to significantly improve her parenting skills despite petitioner providing her services over the course of approximately four years. Furthermore, respondent had bipolar disorder, schizoaffective disorder, and closed-head injuries that predisposed her to angry and impulsive behavior. Respondent usually took psychotropic medications for her mental illnesses and had many mental-health interventions during the years in which petitioner provided her services. The testimony presented indicated that even after respondent's release from prison in 2014, she had not returned to individual therapy, obtained employment, or reapplied for Social Security disability benefits, and the evidence showed that respondent continued to be involved in physical confrontations with TDJ's father, which necessitated that the police be called to her residence more than three times in 2016. In July 2016, respondent conceded that she had "a CPS history involving child abuse," but "was unclear on the details as [to] why she was criminally charged and why . . . CPS became involved . . . [before] her conviction[s]" in 2007. Respondent denied having a mental health diagnosis.
We detect no clear error in the circuit court's finding that the circumstances justified termination pursuant to MCL 712A.19b(3)(g).
C. MCL 712A.19b(3)(i)
Termination of parental rights is permitted under MCL 712A.19b(3)(i) if the court finds by clear and convincing evidence that "[p]arental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful." It is undisputed that respondent lost her parental rights to TDJ's siblings due to chronic serious physical abuse. There was also ample evidence to support that the myriad of services that petitioner previously offered respondent failed to markedly stabilize her mental health and improve her ability to parent. The overwhelming evidence of respondent's chronic physical abuse of TDJ's siblings and respondent's inability to improve her coping and parenting skills after multiple attempts to rehabilitate her clearly and convincingly established the applicability of MCL 712A.19b(3)(i). In re Gach, 315 Mich App 83, 94-95; 889 NW2d 707 (2016).
D. MCL 712A.19b(3)(j)
MCL 712A.19b(3)(j) authorizes termination of parental rights if "[t]here 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."
We cannot say that the court clearly erred in finding that there was clear and convincing evidence which established that TDJ could not be safely placed with respondent. In re LE, 278 Mich App at 28. The evidence established that respondent had a long history of inflicting severe physical abuse on TDJ's siblings between 1996 and 2007, when she went to prison. Respondent failed to significantly improve her parenting skills despite receiving services over the course of approximately four years. Furthermore, as stated previously, respondent had bipolar disorder, schizoaffective disorder, and closed-head injuries that predisposed her to angry and impulsive behavior. Although respondent took psychotropic medications for her mental illnesses and had many mental-health interventions during multiple years in which petitioner provided her services, her 2007 psychological evaluation concluded that "even with consistent treatment, [the] prognosis for safety, security, and appropriateness in parenting was quite poor which left the children at risk for continued abuse and neglect when in [respondent's] care."
Bowman testified that in July 2016, respondent conceded that she had "a CPS history involving child abuse," but "was unclear on the details as [to] why she was criminally charged and why . . . CPS became involved . . . [before] her conviction[s]." Respondent also denied having a mental health diagnosis. Respondent continued to be involved in physical confrontations with TDJ's father that required police intervention. Bowman disbelieved that any additional services would assist respondent in improving her parenting skills.
In light of this evidence, we detect no clear error in the circuit court's conclusion that clear and convincing evidence established the likelihood that TDJ would be at risk of emotional and physical harm if placed in respondent's home. In re Hudson, 294 Mich App 261, 266; 817 NW2d 115 (2011).
E. MCL 712A.19b(3)(k)(iii)
A court may terminate parental rights if it finds by clear and convincing evidence that "[t]he parent abused the child or a sibling of the child and the abuse included" "[b]attering, torture, or other severe physical abuse." MCL 712A.19b(3)(k)(iii). There was sufficient evidence to support a finding that respondent severely, physically abused TDJ's siblings, for which she was convicted of both first-degree and third-degree child abuse, and that she failed to markedly improve her parenting skills although she had approximately four years to do so. In re Hudson, 294 Mich App at 266. This evidence supports the trial court's reliance on MCL 712A.19b(3)(k)(iii) as an additional statutory ground for termination.
Moreover, respondent has not substantiated a plain due process violation arising from the circuit court's reliance on MCL 712A.19b(3)(k)(iii). US Const, Am XIV; Const 1963, art 1, § 17. In support of her argument, respondent relies on In re Gach, 315 Mich App at 98-101, in which this Court held that MCL 712A.19b(3)(l) was unconstitutional, reasoning as follows:
In MCL 712A.19b(3)(l), our Legislature authorized termination of parental rights if clear and convincing evidence established that the "parent's rights to another child were terminated as a result of proceedings under [MCL 712A.2b] . . . or a similar law of another state." --------
In contrast to MCL 712A.19b(3)(i), there is no requirement under statutory ground MCL 712A.19b(3)(l) that its application be limited to "serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful." Instead, subsection (3)(l) essentially allows a trial court to proceed directly to a best-interest determination when it has taken jurisdiction over a child and when a respondent has had a previous termination under the juvenile code for any reason. . . .
* * *
In sum, we hold that, under our current statutory scheme, when a parent has been subjected to an earlier termination of parental rights, if MCL 712A.19(b)(3)(i) does not justify the new termination because it cannot be clearly and convincingly proved that the parent had failed to remedy the earlier abuse or
negligence that led to the earlier termination, application of MCL 712A .19(b)(3)(l) disdains present realities in deference to past formalities and simply forecloses the determinative issues of competence and care. MCL 712A.19b(3)(l) thus fails to comport with due process in light of the fundamental liberty interest at stake. [Emphasis added, quotations and citation omitted.]
MCL 712A.19b(3)(k)(iii), unlike MCL 712A.19b(3)(l), does not authorize termination of parental rights solely on the basis of a prior termination. The plain language of MCL 712A.19b(3)(k)(iii) does not reference directly or indirectly the existence of a prior termination of parental rights. Instead, MCL 712A.19b(3)(k)(iii) references as a basis for termination only the physical or sexual abuse of a child that qualifies as "[b]attering, torture, or severe physical abuse."
Furthermore, even if it was improper for the trial court to rely on MCL 712A.19b(3)(k)(iii) as a basis for termination, respondent would not be entitled to relief because clear and convincing evidence supports the circuit court's reliance on MCL 712A.19b(3)(b)(i), (g), (i), and (j). In re Vasquez, 199 Mich App 44, 52; 501 NW2d 231 (1993) (explaining that although the evidence did not clearly and convincingly prove the statutory ground in MCL 712A.19b(a)(ii), "clear and convincing evidence was presented to support termination of . . . parental rights under the other statutory grounds alleged," and "[t]ermination was warranted").
III. BEST INTERESTS
Respondent next challenges the circuit court's determination regarding TDJ's best interests. "Even if the trial court finds that the [petitioner] has established a ground for termination by clear and convincing evidence, it cannot terminate the parent's parental rights unless it also finds by a preponderance of the evidence that termination is in the best interests of the child[]. MCL 712A.19b(5)." In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). In In re White, 303 Mich App 701, 713; 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. [Citation and quotation marks omitted.]
The circuit court committed no clear error in finding that termination of respondent's parental rights served TDJ's best interests. The testimony given recognized that a loving bond existed between respondent and TDJ, who was approximately five months of age when the best-interest hearing occurred, and respondent interacted appropriately with TDJ during supervised parenting times. However, respondent had given birth to seven children, and petitioner provided respondent with many opportunities to stabilize her mental condition and improve her parenting skills. Before TDJ's birth in 2016, petitioner provided respondent with opportunities to participate in psychological evaluations, therapy, and parenting classes, among other services, for at least four years. Despite these services, respondent severely abused TDJ's siblings between 1996 and 2007, when she pleaded guilty of first-degree child abuse and two counts of third-degree child abuse. After TDJ's birth, respondent did not have a driver's license, an independent source of income, or stable housing. Bowman testified that termination of respondent's parental rights served TDJ's best interests in light of the termination of respondent's parental rights to TDJ's six siblings, and the ongoing concerns regarding domestic violence at respondent's residence, physical neglect, and untreated mental health. A recent psychological evaluation of respondent conducted in November of 2016 concluded that termination of respondent's parental rights served TDJ's best interests because if respondent faced particular triggers, like a colicky baby, she could become physically abusive toward TDJ. In conclusion, respondent failed to significantly exhibit improved mental stability or parenting skills for any long period of time.
By the time of the best-interest hearing, TDJ had lived all but the first four weeks of his life in foster care. TDJs very young age signified that he strongly required permanency and stability. Id. TDJ appeared to be doing well in his foster home. Id. Respondent had a long history of domestic violence against TDJ's siblings, and domestic violence continued to be an issue in respondent's interactions with TDJ's father. The psychologist who evaluated respondent concluded that in light of the history of respondent's prolonged physical abuse of TDJ's siblings, serious mental issues, and the recent police reports documenting domestic violence in respondent's home, respondent's prognosis was very poor even if she received additional treatment and medication assistance.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Kirsten Frank Kelly
/s/ Christopher M. Murray