Opinion
No. 341189
05-08-2018
In re L. R. LOMINAC, Minor.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 16-523159-NA Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ. PER CURIAM.
Respondent appeals as of right the order terminating her parental rights to her minor child pursuant to MCL 712A.19b(3)(j) (reasonable likelihood that the child will be harmed if returned to parent). We affirm.
I. JURISDICTION
Respondent first argues that the trial court's finding that sufficient evidence existed to allow it to exercise jurisdiction over the minor child was clearly erroneous. Generally, this Court reviews de novo a trial court's decision to exercise jurisdiction in a proceeding to terminate parental rights. In re Terry, 240 Mich App 14, 20; 610 NW2d 563 (2000). However, regardless of whether there is merit to respondent's argument, respondent may not challenge the trial court's exercise of jurisdiction on appeal.
Matters that affect a trial court's exercise of jurisdiction "may be challenged only on direct appeal of the jurisdictional decision, not by collateral attack in a subsequent appeal of an order terminating parental rights." In re Gazella, 264 Mich App 668, 679-680; 692 NW2d 708 (2005), superseded by statute on other grounds in MCL 712A.19b(5); see also In re SLH, 277 Mich App 662, 668; 747 NW2d 547 (2008) (finding that an adjudication cannot be collaterally attacked following the entry of an order terminating parental rights). Respondent's failure to appeal from the order of adjudication thus means that she has forfeited the right to challenge the trial court's exercise of jurisdiction altogether.
An order of adjudication was entered on October 3, 2017. Accordingly, if respondent wished to properly challenge the exercise of jurisdiction, she was required to do so by appealing from the order of adjudication. Id. If the trial court had simply noted that it had found statutory grounds to exercise jurisdiction over the minor child in the order of disposition, rather than in a separate order of adjudication, respondent would have been able to challenge jurisdiction, because the order of disposition would have been the only order from which to appeal the jurisdictional issue. Unfortunately, since respondent failed to appeal the trial court's exercise of jurisdiction from the order of adjudication, respondent is now precluded from challenging jurisdiction on appeal.
II. STATUTORY BASIS
Respondent next argues that there was not a statutory basis to support the termination of her parental rights. We 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 NW2d 61 (2014). "The trial court's factual findings are clearly erroneous if the evidence supports them, but [this Court is] definitely and firmly convinced that it made a mistake." Id. at 709-710.
Respondent's parental rights were terminated under MCL 712A.19b(3)(j), which provides that:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . .Previously, respondent's parental rights to two other children were terminated due to respondent's failure to protect one of the minor children from sexual abuse at the hands of respondent's husband. "Any rational evaluation of the evidence must take into account respondent's . . . history of instability as relevant to her current capacity to provide proper care for the child." In re Utrera, 281 Mich App 1, 25; 761 NW2d 253 (2008). A Clinic for Child Study evaluation indicated that respondent had demonstrated poor judgment and decision-making regarding the safety of her children in the past. The trial court found that respondent has a history of engaging in unhealthy relationships with men, and placing her children in danger as a result.
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(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. [MCL 712A.19b(3)(j); In re White, 303 Mich App at 710.]
See In re Comer Minors, unpublished per curiam opinion of the Court of Appeals, issued October 12, 2017 (Docket Nos. 338154; 338155). --------
Defendant argues that the trial court's reliance on her past behavior as evidence supporting the termination of her parental rights under MCL 712A.19b(3)(j) was clearly erroneous because the trial court could only speculate about whether she would continue to engage in unhealthy and unsafe relationships in the future. However, the doctrine of anticipatory neglect states that " '[h]ow a parent treats one child is certainly probative of how that parent may treat other children.' " In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001), quoting In re LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973). Respondent's rights to her two older children were terminated one month prior to the birth of the minor child in this matter. Respondent's reckless decision-making with regard to the men that she chose to engage with romantically was a major factor in the determination of whether the trial court could properly terminate her rights to the two older children, and it is at issue with regard to this minor child. The trial court properly considered respondent's history of unstable relationships with men who pose a threat to her children when it determined whether respondent would cause a risk of harm to the minor child in the future.
Additionally, both physical and emotional harm to the child must be considered when evaluating whether the child will be at risk if reunited with the parent. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). Respondent has demonstrated that she is unwilling to place the needs of her children above her own interests. For example, respondent failed to protect an older child from sexual abuse, and violated a safety plan put in place by the authorities in Indiana by bringing her two older children to live in Michigan with the same husband who was under criminal investigation for molesting one of respondent's older children. Further, while still married, respondent engaged in a relationship with the minor child's legal and biological father, which resulted in the minor child being born out of wedlock.
Emotional harm includes the deprivation of a normal home environment, and a normal home environment cannot be established where the parent is constantly introducing new men of questionable character into the home. Hudson, 294 Mich App at 268. Exposure to respondent's unhealthy relationships with men who may pose a risk to the minor child may be detrimental to her physical and emotional health over time. Further, respondent has already proven that she is unequipped to protect her children from the men that she associates with, and had her parental rights terminated as a result in the past. This behavior makes it reasonably likely that the minor child could be harmed if returned to respondent's care. Therefore, the trial court did not clearly err by finding that clear and convincing evidence supported termination of respondent's parental rights under MCL 712A.19b(3)(j). Accordingly, defendant's claim must fail.
III. BEST INTERESTS
Finally, respondent argues that the trial court's decision to terminate her parental rights was clearly erroneous, and was not in the minor child's best interests. We disagree.
Termination of parental rights must be ordered if the trial court finds that a statutory basis for termination has been established by clear and convincing evidence, "and it finds from a preponderance of the evidence on the whole record that termination is in the children's best interests. [This Court] review[s] for clear error the trial court's determination regarding the children's best interests." In re White, 303 Mich App at 713.
In making a best-interest determination, the trial court must weigh all of the available evidence. Id. The trial 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." Id. (citation and quotation omitted).
The trial court concluded that termination was in the minor child's best interest primarily due to respondent's association with men who posed a risk to the minor child's safety, and also considered whether respondent could adequately satisfy the minor child's need for stability. In making its determination, the trial court also relied on the Clinic for Child Study evaluation. The trial court stated:
[The Clinic for Child Study evaluation] states that [respondent's] prognosis appears to be poor. Poor emotional stability. Poor judgment. Poor decision making . . . . This has to do with the choices that [respondent] makes. The most monumentally ill-advised [choice was] going back to reunite with [respondent's husband] . . . .
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This is a very important period of development for the child. There is a critical period for brain development coming up at about age three. [T]he bad choices by [respondent] regarding not getting divorced before starting new relationships, getting pregnant again caused dad to be trying to get in[to a relationship with respondent], [respondent's husband] trying to get out [of a relationship with respondent] and the child ending up in foster care . . . The Clinic for Child Study [evaluation] doesn't think [respondent is] fixable. The Court of Appeals doesn't either, which gives me the guidance I need. Termination is in [the minor child]'s best interest.
The trial court further found that the minor was doing well in her placement with her legal and biological father, and was living with her father and paternal grandmother. The trial court recognized the minor child's placement with relatives as a "mild factor against termination." Nevertheless, the trial court found that the factors weighing in favor of termination outweighed the factors against termination. The evidence supports that respondent has had a continuous pattern of engaging in relationships with men, some of whom may pose a risk to the minor child. Such behavior indicates that the minor child would not be safe in the future if respondent were permitted to retain her parental rights.
Additionally, the record does not support the notion that respondent and the minor child have a bond. The minor child was removed from respondent's custody approximately one month after she was born. Additionally, the minor child was in foster care for one month because paternity had not been established, during which time respondent did not see the minor child at all. Respondent has not benefitted from services, given that she violated the service plans related to her two older children by leaving Indiana and moving to Michigan in order to reunite with her older child's abuser. Respondent's decision to follow her husband to Michigan after he had abused her child, followed immediately by her relationship with the biological father of the minor child at issue, and the ensuing birth of the minor child while still married, indicate that respondent mother has not made her children a priority over her relationships with men in the past, and is unlikely to do so in the future. This is detrimental to the health and safety of the minor child. Thus, the trial court did not clearly err in finding that the termination of respondent's parental rights was in the minor child's best interests.
Affirmed.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Kathleen Jansen