Opinion
No. 347441 No. 347442
08-13-2019
In re MCGEE/SPENCER Minors.
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 UNPUBLISHED Wayne Circuit Court Family Division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. 11-501043-NA Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ. PER CURIAM.
In these consolidated appeals, respondent-mother, T. Monroe, and respondent-father, M. Spencer, each appeal as of right the trial court's order that terminated respondent-mother's parental rights to her three children, AM, NM, and KS, and terminated respondent-father's parental rights to KS, pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Respondent-mother has a prior history with Child Protective Services. Her two sons, AM and NM, were previously removed from her care in 2011, following the death of another infant child. The court terminated the parental rights of AM and NM's father, M. Moore, in 2012. Respondent-mother participated in services, and the children were returned to her care in 2014.
In 2016, respondent-mother gave birth to respondent-father's daughter, KS. The children were removed from care again in May 2017, because of suspected physical abuse by both respondents. A physician who examined NM observed multiple abrasions on his thigh that resembled loops, which were indicative of having been whipped. Respondent-mother and NM told the doctor that NM had fallen onto a grill, but this explanation was not consistent with the child's injuries. The doctor concluded that the child had been physically abused. Petitioner sought termination of respondents' parental rights at the initial dispositional hearing. Following an adjudicative trial in July 2017, the trial court found the existence of statutory grounds for jurisdiction and statutory grounds to terminate respondents' parental rights, but concluded that it was in the children's best interests to allow respondents to participate in reunification services. Accordingly, the court declined to terminate respondents' parental rights.
After NM and AM were placed in foster care, they were both assessed for trauma. They revealed additional incidents of physical abuse and both were diagnosed as suffering from post-traumatic stress disorder (PTSD) as a result of the trauma and abuse they had experienced in the family home with respondents. Both respondents pleaded guilty to fourth-degree child abuse. NM and AM both had significant behavioral and emotional issues when they entered foster care. These issues improved over time, but would reappear near the time of visits with respondent-mother. Although KS, who was only an infant when she entered foster care, had not suffered direct abuse from respondents, she too showed signs of stress around the time of visits with respondents.
Both respondents participated in services as required by their treatment plans, and both were generally compliant with the requirements of their plans. According to caseworkers, however, neither respondent benefited from services. Principally, they minimized the children's abuse, generally only conceding that they used improper disciplinary techniques on one occasion, which was inconsistent with AM's and NM's disclosures in foster care and also inconsistent with the scope and severity of the trauma suffered by NM and AM, which was indicative of long-term abuse. Respondents did not demonstrate an understanding of the extent of NM's and AM's emotional trauma and PTSD conditions. After respondents had participated in services for more than a year, with little benefit, a supplemental petition to terminate their parental rights was filed. After the filing of this petition, the trial court discontinued NM's and AM's visits with respondent-mother because of the harmful effects of the visits on the children. Thereafter, NM's and AM's behavioral and emotional problems improved.
Following a hearing in November 2018, the trial court terminated respondent-mother's parental rights to all three children, and terminated respondent-father's parental rights to KS. These appeals followed.
II. STANDARD OF REVIEW
Both respondents argue that the trial court erred by finding the existence of a statutory ground for termination and by finding that termination of parental rights was in the children's best interests.
Petitioner has the burden of proving a statutory ground for termination under MCL 712A.19b(3) by clear and convincing evidence. In re Trejo, 462 Mich 341, 350; 612 NW2d 407 (2000). The trial court terminated the parental rights of both respondents pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), 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.
(ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.Termination of parental rights need only be supported by a single statutory ground. In re Gonzales/Martinez, 310 Mich App 426, 431; 871 NW2d 868 (2015).
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(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.
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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.
"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." MCL 712A.19b(5). Whether termination of parental rights is in a child's best interests need only be proven by a preponderance of the evidence. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013).
A trial court's findings regarding the existence of a statutory ground for termination and a child's best interests are both reviewed for clear error. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010); In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009). A finding is clearly erroneous when, 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 Mason, 486 Mich at 152. Deference must be accorded to the trial court's assessment of the credibility of the witnesses who appear before it. In re Newman, 189 Mich App 61, 65; 472 NW2d 38 (1991).
III. DOCKET NO. 347441 (RESPONDENT-MOTHER)
Respondent-mother generally complied with the requirements of her treatment plan by attending parenting classes, attending individual counseling, completing a psychological evaluation, obtaining housing and a suitable income, and visiting with the children. The trial court found, however, that she did not benefit from these services. Our Supreme Court has observed that a "parent's compliance with the parent-agency agreement is evidence of her ability to provide proper care and custody." In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003). Mere compliance, however, is not enough. A respondent has the responsibility to not only cooperate and participate in services, but must also benefit therefrom. In re TK, 306 Mich App 698, 711; 859 NW2d 208 (2014).
In this case, the evidence supports the trial court's finding that respondent-mother did not benefit from the services provided, and thus did not successfully complete the requirements of her treatment plan. The evidence showed that respondent-mother failed to internalize the counseling provided to her. She continued to minimize the abuse to which AM and NM were subjected, insisting that it was limited to, at most, only a few incidents of improper disciplinary techniques. She also continued to display a lack of understanding of the effect of the abuse on her two sons, AM and NM, and the severity of their emotional trauma. Both boys were diagnosed with PTSD as a result of the abuse they endured in the family home. Respondent-mother's lack of understanding of the extent of the boys' trauma left her unprepared to meet and address their emotional needs. The trial court found that, at 8 and 10 years old, "these children will probably be in therapy for the rest of their lives."
Respondent-mother was offered services over a 16-month period from July 2017 to November 2018 in order to rectify the conditions that led to the children's removal and other conditions, and to give her an opportunity to demonstrate that she could provide proper care and custody of the children. Despite her participation in services, she showed little insight regarding the reasons for the children's removal. More significantly, she failed to recognize the extent of the trauma to her sons or demonstrate an ability to appropriately address their emotional needs and behavioral issues. Considering her lack of progress in recognizing and resolving these issues after 16 months, there was no reasonable likelihood that she would be able to rectify them within a reasonable period of time, or be in a position to provide proper care and custody within a reasonable period of time. Further, considering the trauma the boys had previously experienced while in respondent-mother's care, they were reasonably likely to be harmed if returned to her home. Accordingly, the trial court did not clearly err by finding that statutory grounds for terminating respondent-mother's parental rights were established under §§ 19b(3)(c)(i), (c)(ii), (g), and (j).
Some of the alleged abuse was disclosed after the adjudicative hearing. Moreover, the boys' trauma assessments and PTSD diagnosis did not occur until after the adjudicative hearing.
We reject respondent-mother's suggestion that the trial court gave undue weight to the foster mother's testimony. Respondent-mother contends that the foster mother was biased because she wanted to adopt the children. The foster mother primarily testified regarding the children's behavioral issues, including their acting out before and after the visits with respondents. The credibility of her testimony was for the trial court to decide. In re Newman, 189 Mich App at 65. Much of the foster mother's testimony was corroborated by other evidence. Both boys were clinically assessed for trauma and found to have PTSD. Their teachers were consistent in describing the boys' behavioral and emotional problems in school, and the progress they made over time while in foster care. Given this testimony from other witnesses, respondent-mother has not demonstrated any clear error in the trial court's consideration of the foster mother's testimony.
Respondent-mother also complains that the foster mother was allowed to act as a support person for NM during his testimony, but she does not explain why this arrangement should not have been allowed. There were no objections below to this arrangement. NM had been diagnosed with PTSD, and the proceedings were emotionally difficult for him. The foster mother was NM's legal guardian at the time, and she was not the subject of the proceedings. The court merely allowed her to be seated near NM during his testimony as support. The court scheduled the foster mother's testimony first to ensure that NM's testimony would not be influenced by it and prohibited her from communicating with NM during his testimony. Under these circumstances, respondent-mother has not demonstrated that she was prejudiced by this arrangement. See People v Rockey, 237 Mich App 74, 78; 601 NW2d 887 (1999).
Respondent-mother also submits that the trial court's decision was improperly influenced by the children's desire to remain with their foster family, which respondent-mother attributes to the foster family's financial ability to provide the children with material items and experiences that she was unable to afford. The record does not support this argument. Although the trial court found it significant that the boys had indicated that they did not want to return to respondent-mother's care, the court never linked that preference to any material items or experiences the foster family was able to provide. Moreover, the boys made it clear in their own testimony that they wanted to remain with the foster family for their own safety, not because the family was better able to meet their material needs. And although it is improper for a court to weigh or consider the advantages of alternative placements in deciding whether a statutory ground for termination exists, In re Foster, 285 Mich App 630, 634-635; 776 NW2d 415 (2009), the trial court never referred to any benefits the children were receiving in their foster placement in its discussion of the statutory grounds for termination. Accordingly, there is no merit to this argument.
In sum, the trial court did not clearly err by finding that the statutory grounds for termination were established by clear and convincing evidence with respect to respondent-mother.
We also reject respondent-mother's challenge to the trial court's findings regarding the children's best interests. In deciding whether termination of parental rights is in a child's best interests, the court may consider the child's bond to the parent, the parent's parenting abilities, and the child's need for permanency, stability, and finality. In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012). Because AM and NM were old enough to express a preference, it was appropriate for the court to consider their testimony. In re Medina, 317 Mich App 219, 238-239; 894 NW2d 653 (2016). The trial court may also consider the advantages of an alternative home for a child when considering a child's best interests. In re Foster, 285 Mich App at 634-635.
The trial court relied in part on the boys' testimony to find that termination of respondent-mother's parental rights was in the children's best interests. The boys were diagnosed with PTSD because of the trauma they experienced while with respondent-mother, and they expressed a continuing fear for their safety and the safety of their younger sibling if they were returned to respondent-mother's care. Although KS was not directly abused, the court found that she was indirectly affected by respondents' actions. Moreover, given respondent-mother's lack of progress, there is no reason to believe that KS would not suffer the same fate as her brothers if she was returned to respondent-mother's custody. Because of trauma that the children, particularly the boys, had experienced while they were with respondent-mother, and considering the boys' continuing concerns for their safety if returned to respondent-mother's care and their ongoing PTSD condition, for which they would require long-term therapy, the trial court did not clearly err by finding that it was not in the children's best interests to be reunited with respondents.
Although respondent-mother argues that she demonstrated "good parental insight" into her abuse of the children, the trial court found that she continued to minimize the scope and severity of the abuse, and she also failed to understand the severity of the children's trauma and the boys' PTSD conditions. Respondent-mother asserts that the children "did not tell the lower court they lacked a bond with her." Although the boys testified that they had some love for respondent-mother, they both expressed that they did not feel safe in her custody, so they did not want to return to her care. In addition, by the time of the termination hearing, KS had spent the majority of her life in the care of her foster family, with whom she was attached. Any bond the children may have had with respondent-mother was insignificant.
Given this record, the trial court did not clearly err by finding that termination of respondent-mother's parental rights was in her children's best interests.
IV. DOCKET NO. 347442 (RESPONDENT-FATHER)
Respondent-father was offered services over a 16-month period, which included parenting classes and individual counseling. As with respondent-mother, the evidence showed that he minimized his abuse of the children and would not acknowledge the severity of the harm to AM and NM. Indeed, when respondent-father addressed the court in August 2018, just a few months before the termination hearing, he stated that he struck NM just one time, he denied causing any injuries to AM, and he denied that respondent-mother used any improper forms of discipline. These denials were inconsistent with the boys' disclosures, and were inconsistent with the nature of the boys' emotional trauma, behavioral issues, and PTSD diagnoses, which were indicative of long-term abuse. The therapist for KS, who also worked with respondents for 14 months, testified that she would not be comfortable returning KS to respondent-father and that there was still a need for further therapy. She was unable to provide a specific timeframe for how long therapy should continue, but agreed it could continue for another year. Although AM and NM are not respondent-father's own children, and KS was not a subject of the abuse, she was only an infant when the older boys were abused and, under the doctrine of anticipatory abuse or neglect, respondent-father's treatment of the older children was probative of how he would treat KS in the future. In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001) (recognizing that "[h]ow a parent treats one child is certainly probative of how that parent may treat other children") (citation omitted). Thus, even though respondent-father participated in services, the trial court did not clearly err by finding that he too failed to benefit from the services to the point that the conditions that led to his child's removal had not been rectified. Accordingly, the trial court did not clearly err by finding that the evidence supported termination of respondent-father's parental rights under § 19b(3)(c)(i).
In addition, respondent-father's failure to acknowledge the abuse that was disclosed by the children after they were placed in foster care and his reluctance to recognize the severity of the trauma that the children experienced supported termination under § 19b(3)(c)(ii). For the same reasons, the trial court did not clearly err by finding that termination of respondent-father's parental rights was also justified under §§ 19b(3)(g) and (j). Given respondent-father's lack of progress in therapy and failure to fully understand the children's trauma, as well as the therapist's testimony regarding the need for continued therapy for an undetermined period that could be as long as a year, respondent-father was not in a position to provide proper care and custody for his own child, and there was no reasonable expectation he could do so within a reasonable period of time. Additionally, KS was reasonably likely to be harmed if returned to respondent-father's home. Although respondent-father blames his lack of progress on the trial court's refusal to allow family therapy, the trial court appropriately reasoned that family therapy was not an option until reunification became likely. The trial court did not clearly err by finding that family therapy was unwarranted in light of respondent-father's lack of progress with his own individual goals of therapy.
We similarly reject respondent-father's challenge to the trial court's findings regarding KS's best interests. The trial court relied in part on the severe trauma to AM and NM, and their continuing fears about being reunited with both respondents, to find that termination of respondent-father's parental rights to KS was also in KS's best interests. The court noted that even AM had expressed concern for the safety of KS if she was returned to respondent-father's care. The court recognized that KS was not herself abused, but still found that she had been "indirectly affected by her parent's actions." The court found that given the history of turmoil in the family, it would be more harmful than beneficial to allow respondent-father's parental rights to KS to remain intact.
Respondent-father argues that he and KS had a strong bond and visits with her were appropriate. However, KS had also developed a strong attachment to her foster family, with whom she had lived the majority of her life. Moreover, her therapist agreed that respondent-father was not in a position to care for KS, and was uncertain how long it might be before he could do so. The foster family, which was meeting all of KS's needs, was willing to care for her long term, and this placement also allowed her to remain with her siblings.
The trial court did not clearly err by finding that termination of respondent-father's parental rights was in KS's best interests.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel
/s/ James Robert Redford