Opinion
No. 347100 No. 348825
11-26-2019
In re J. SILVERNAIL, Minor.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court Family Division
LC No. 17-000096-NA Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ. PER CURIAM.
In Docket No. 347100, respondent-mother appeals by right an order terminating her parental rights to her child under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and custody), and (j) (risk of harm to the child if returned to the parent). In Docket No. 348825, respondent-father appeals by right a separate order terminating his parental rights to the child under MCL 712A.19b(3)(c)(i), (c)(ii), (h) (parental incarceration depriving child of normal home for more than two years without providing alternative care), and (j). For the reasons set forth in this opinion, we affirm.
I. FACTUAL BACKGROUND
The minor child tested positive at birth in January 2017, for the presence of various drugs, including cocaine, methamphetamine, morphine, and THC. Respondent-mother had tested positive for substances, including cocaine, during the course of her pregnancy; she had admitted to using marijuana, Novocaine, and Vicodin during her pregnancy. She did not have a prescription for Vicodin or a medical marijuana card. However, respondent-mother stated that she was given a morphine shot at the hospital two days before the child was born and that she was given Novocain when she had a tooth removed three days before the child was born. There was also evidence that multiple family members from both respondents' families had concerns about domestic violence between respondent-mother and respondent-father. Although respondent-mother denied having reported that she was beaten by respondent-father, respondent- mother acknowledged that she was living at EVE (which is a domestic violence shelter) at the time of the child's birth. There were also concerns about respondent-mother's mental health because she had indicated that she was not taking several medications that had been prescribed to her for mental health issues. Respondent-mother testified at the adjudication trial that she had been "suicidal" during her pregnancy and had been put on "suicide watch" while in the hospital in December 2016.
EVE stands for "Ending Violent Encounters."
After respondent-mother's adjudication trial, the trial court found that a preponderance of the evidence supported exercising jurisdiction over the child under MCL 712A.2(b)(1) and (2) because of respondent-mother's substance abuse and use of substances during her pregnancy. The court also explained that based on respondent-mother's behavior during the trial—which it described as "erratic, very jittery, fidgety in her chair, sometimes speaking rapidly, sometimes speaking at inappropriate times, out of turn"—it was concerned about respondent-mother's substance abuse and mental health. The trial court proceeded to disposition, and the foster-care case manager indicated that respondent-mother's barriers included substance abuse, mental health, and domestic relations.
Respondent-father was incarcerated at some point after the child was born. He was adjudicated, much later than respondent-mother, based on his admission to petition allegations that he had been sentenced in December 2017 to serve 50 months to 20 years' imprisonment, was unable to provide proper care and custody for the child, and had not provided the agency with a relative who could care for the child during respondent-father's incarceration.
It appears that this delay was due to needing to establish respondent-father's status as the child's legal father.
Throughout the case, respondent-mother engaged in substance abuse and emotional outbursts, and she frequently missed parenting time visits. Respondent-mother demonstrated emotional instability during parenting time visits, and her parenting time never proceeded from supervised to unsupervised visits at any time during the case. There was evidence that on approximately December 25, 2017, respondent-mother attempted to commit suicide by ingesting Dilaudid pills and was arrested while driving to her mother's home, which resulted in her being charged with operating while impaired. There was also testimony that respondent-mother was twice hospitalized for being at risk of committing suicide, including once during the time period of her multiple-day termination hearings. Respondent-mother denied having attempted suicide. Respondent-mother continued to test positive for THC throughout the proceedings. She also tested positive for methamphetamine and alcohol. Respondent-mother failed to complete her residential inpatient substance abuse treatment program. She further admitted to having used methamphetamine while in jail in August 2018, which was also during time period in which her termination hearings were being conducted. Additionally, respondent-mother was the victim of an incident of domestic violence with another man, which apparently began as a fight over respondent-mother's use of methamphetamine. She continued to have contact with this individual at the time of the termination hearing, even though she had obtained a personal protection order against him.
The termination hearing began on July 30, 2018, and was continued over multiple days, ending on November 26, 2018.
The trial court ruled that termination of respondent-mother's parental rights to the minor child was justified under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j), and that termination was in the child's best interests.
A termination hearing was subsequently held on April 8, 2019, with respect to respondent-father. Respondent-father was still incarcerated, and his earliest release date was June 20, 2021. He still had not provided any relative to care for the minor child during his incarceration. The foster-care case manager testified that she had discussed this issue with respondent-father when she met with him in person and that the matter had been discussed at each review hearing. The child remained placed in the same non-relative licensed foster home in which she had been placed since her removal from respondents' care, and the child was doing well in her placement. According to the foster-care case manager, the child had a bond with her foster parents but did not have a bond with respondent-father. The foster-care case manager indicated that there had not been any change in respondent-father's ability to provide proper care and custody for the child since respondent-father's adjudication. The trial court found that termination was proper under MCL 712A.19b(3)(c)(i), (c)(ii), (h), and (j), and that termination was in the child's best interests.
Both respondents now appeal the termination of their parental rights.
II. STATUTORY GROUNDS
First, respondent-mother and respondent-father each challenge the trial court's statutory grounds determination.
A. STANDARD OF REVIEW
This Court reviews "for clear error a trial court's factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). "A finding is clearly erroneous [if] 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." Id. (quotation marks and citation omitted; alteration in original).
B. RESPONDENT-MOTHER
The trial court cited four statutory grounds for terminating respondent-mother's parental rights, one of which was MCL 712A.19b(3)(c)(i). This provision states in pertinent part that a court may terminate parental rights if clear and convincing evidence establishes the following:
(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 . . . 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. [MCL 712A.19b(3)(c)(i).]
In this case, the supplemental petition seeking termination of respondent-mother's parental rights was authorized on July 3, 2018, and her parental rights were terminated on December 12, 2018. The order of initial disposition was entered on March 13, 2017. It is thus without question that more than 182 days had passed since the initial disposition order had been entered.
The conditions that led to respondent-mother's adjudication were her substance abuse and mental health issues; these conditions had not been rectified by the time of the termination hearing. In terminating respondent-mother's parental rights under MCL 712A.19b(3)(c)(i), the trial court specifically found that substance abuse remained a barrier for respondent-mother. The court also found that emotional stability remained a barrier based, in part, on respondent-mother's multiple hospitalizations—including one most recently during the course of the multiple-day termination hearing—for mental health concerns and her December 2017 suicide attempt. The court stated that respondent-mother's "emotional stability is so significant that it impacts her ability to function appropriately which impacts her ability to parent and that emotional stability still remains a barrier to reunification." These findings were supported by clear and convincing evidence. Moreover, respondent-mother's ingestion of a substance for the purpose of attempting suicide and her coinciding decision to operate a motor vehicle while her functioning was impaired by the influence of substances demonstrates that a child in her care would be at a significant risk of harm from respondent-mother's choices involving substances. By the time of termination, the minor child was nearing two years old and respondent-mother had been struggling with these issues for the child's entire life. The evidence reflected that there was not a reasonable likelihood that these conditions would be rectified within a reasonable time considering the child's age. Accordingly, the trial court did not clearly err by concluding that terminating respondent-mother's parental rights was justified under MCL 712A.19b(3)(c)(i).
Furthermore, as the trial court also noted, the above facts regarding respondent-mother's failure to rectify her substance abuse and mental health barriers also supported terminating her parental rights under MCL 712A.19b(3)(g) and (j). These provisions authorize termination under the following circumstances:
Our review of the record leads us to conclude that the trial court's finding with respect to MCL 712A.19b(3)(g) that respondent-mother was financially able to care for the child was not clearly erroneous.
(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.
* * *
(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.
Only one statutory ground is necessary to support a trial court's termination decision. In re Powers Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000). Because at least one statutory ground existed to properly support termination, we need not address the trial court's additional reliance on MCL 712A.19b(3)(c)(ii). In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009).
C. RESPONDENT-FATHER
With respect to respondent-father, one of the statutory grounds cited by the trial court in support of terminating his parental rights was MCL 712A.19b(3)(h), which provides that the trial court may terminate parental rights if clear and convincing evidence establishes the following:
(h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, 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.
In this case, respondent-father's termination hearing occurred on April 8, 2019, at which time he was incarcerated. The evidence showed that his earliest possible release date was June 20, 2021, meaning that he would be unable to personally care for the child for at least two more years in addition to the time he had already spent incarcerated. Respondent-father was subject to potentially remaining incarcerated until 2037, at which time the child would be 20 years old. By the time of the termination hearing, respondent-father had already been incarcerated for a period of time encompassing the majority of the child's young life but had never provided a relative who could care for the child while he was incarcerated. Thus, while a parent may provide for a child's care and custody while the parent is in prison by giving custody to a relative rather than personally caring for the child, see In re Mason, 486 Mich at 161 & n 11, respondent-father failed to make such arrangements despite having been given significant time and opportunities to do so.
Accordingly, the evidence supported the trial court's conclusions (1) that the child would be deprived of a normal home for more than two years, (2) that respondent-father had not provided for the child's care and custody, and (3) that there was no reasonable expectation that respondent-father would be able to provide proper care and custody within a reasonable time considering the child's age. The trial court did not clearly err by finding that terminating respondent-father's parental rights was authorized by MCL 712A.19b(3)(h). See In re Mason, 486 Mich at 160-161 (stating that termination is authorized under MCL 712A.19b(3)(h) if "each of [these] three conditions is met"). Because at least one statutory ground existed to properly support termination, we need not address the trial court's additional statutory grounds. In re HRC, 286 Mich App at 461.
III. BEST INTERESTS
Next, both respondents challenge the trial court's best-interests findings.
A. STANDARD OF REVIEW
This Court also reviews for clear error the trial court's determination regarding the child's best interests. In re Olive/Metts Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012). To determine whether termination of a parent's 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." Id. at 41-42 (citations omitted). The trial court may also consider, among other factors, the parent's visitation history with the child and the child's well-being while in foster care. In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).
B. RESPONDENT-MOTHER
The trial court recognized that there was testimony that there was a bond between the child and respondent-mother. However, the trial court further recognized that throughout the case, respondent-mother had been hospitalized and incarcerated at various times, which impaired her ability to visit the child and the bond with her young child. The child was not yet two years old at the time of termination. The trial court further found that mother's substance abuse, emotional instability (which included emotional outbursts during parenting time), criminality, domestic violence issues, and substantial number of missed parenting time visits had a negative impact on respondent-mother's parenting ability. The court stated that respondent-mother was unable to attend to her own needs, much less the special needs of the minor child. Additionally, the court found that the child had been in foster care essentially since birth, and needed permanence, finality, and stability. Finally, the court found that the foster home was providing for all of the child's needs. We conclude that these findings were supported by the record evidence. The trial court did not clearly err by determining that terminating respondent-mother's parental rights was in the child's best interests. In re Olive/Metts, 297 Mich App at 40-42; In re White, 303 Mich App at 714.
Respondent-mother appears to argue that termination was not in the child's best interests because it would sever the bond between the child and respondent-mother's two other children, who were the child's half siblings. Respondent-mother testified that she had arranged for these two other children to live with their respective fathers when she found out she was pregnant with the child who is the subject of this case. Respondent-mother also testified that she attempted to bring one of her other children to a visit with the minor child in this case. However, there was no evidence that there was any significant bond between the minor child, who was less than two years old, and her half siblings. The trial court did not take jurisdiction over respondent-mother's other children in this case. Terminating respondent-mother's parental rights in this case was in the child's best interests for the reasons stated above; this determination controls, regardless of any minimal bond that may have existed between the child and her half siblings. See In re Olive/Metts, 297 Mich App at 42 ("Although in most cases it will be in the best interests of each child to keep brothers and sisters together . . . , if keeping the children together is contrary to the best interests of an individual child, the best interests of that child will control.") (quotation marks and citation omitted; ellipsis in original).
C. RESPONDENT-FATHER
The trial court found that terminating respondent-father's parental rights was in the child's best interests because (1) there was no evidence of a bond between respondent-father and the child, with whom he had had no contact other than visiting her once in the hospital after she was born; (2) respondent-father had made poor choices resulting in his incarceration and, concomitantly, impairing his ability to parent the child; (3) the child was two years old, needed permanence and stability, and thus could not wait in foster care for another two or more years for respondent-father to potentially be able to gain care and custody; and (4) the foster home was providing for the child's needs. Respondent-father had been incarcerated for almost the entirety of the child's life. We conclude that the trial court did not clearly err by finding that terminating respondent-father's parental rights was in the child's best interests. In re Olive/Metts, 297 Mich App at 40-42; In re White, 303 Mich App at 714.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, respondent-mother also argues that the attorneys who represented her throughout the case provided ineffective assistance of counsel in a multitude of ways.
"The principles applicable to claims of ineffective assistance of counsel in the arena of criminal law also apply by analogy in child protective proceedings . . . ." In re Martin, 316 Mich App 73, 85; 896 NW2d 452 (2016). When there has been no evidentiary hearing on the matter, as is the case here, this Court's review is "limited to errors apparent on the record." People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). To show that counsel provided ineffective assistance, a respondent must show "that (1) counsel's performance was deficient, falling below an objective standard of reasonableness, and that (2) the deficient performance prejudiced the respondent." In re Martin, 316 Mich App at 85. Regarding the prejudice prong, the respondent must show that "it is reasonably probable that, but for counsel's ineffective assistance, the result of the proceeding would have been different." Jordan, 275 Mich App at 667.
First, respondent-mother argues that her first attorney was "biased" against her because the attorney was saying negative things about respondent-mother to the foster-care case manager before one of the hearings in this case. Respondent-mother does not explain how this single incident had any impact on the outcome of the proceedings. See id. Even if an attorney commits professional misconduct, it cannot serve as a means for challenging the trial court's termination decision if that misconduct was unrelated to how the attorney actually represented the respondent during the proceedings and whether that representation was constitutionally effective. See People v Pubrat, 451 Mich 589, 596-601; 548 NW2d 595 (1996). Nonetheless, respondent-mother does make several additional complaints about actions that her first attorney did not take with respect to this case that respondent-mother believes should have been taken. Specifically, respondent-mother asserts that her first attorney was ineffective for (1) not obtaining respondent-mother's medical records documenting her medical diagnoses, prescribed medications, and the administration of morphine to respondent-mother two days before the child's birth; (2) failing to "dispute[] the findings at review hearings that no progress was made"; and (3) "not discuss[ing] Family Dependency Treatment Court" with her.
Notably, respondent-mother does not provide any further clarity to this assertion or explain what evidence would have demonstrated that she did make progress during any particular review period. Thus, in addition to the fact that respondent-mother has failed to make the requisite showing of prejudice, this argument is abandoned. In re TK, 306 Mich App 698, 712; 859 NW2d 208 (2014) ("A party cannot simply assert an error or announce a position and then leave it to this Court to discover and rationalize the basis for [her] claims, or unravel and elaborate for [her her] argument, and then search for authority either to sustain or reject [her] position.") (quotation marks and citation omitted; alterations in original). --------
We initially note, with respect to respondent-mother's claim about the medical records, that at least some of this information was introduced into evidence during the proceedings and that it would have been within respondent-mother's power to facilitate the procurement of any medical records she wished her attorney to have. That being said, none of respondent-mother's alleged deficiencies in this attorney's performance have any bearing on the fact that respondent-mother failed during the course of this case to adequately address her substance abuse (including her abuse of methamphetamine and marijuana) and mental health issues that led to her adjudication in this matter. Respondent-mother has not demonstrated that but for these alleged instances of deficient performance by this attorney, the trial court would not have found that the conditions of substance abuse and mental health issues continued to exist and warranted termination of respondent-mother's parental rights. Jordan, 275 Mich App at 667. She has not established the requisite prejudice and therefore has not shown that she received ineffective assistance of counsel on this basis. In re Martin, 316 Mich App at 85.
Next, respondent-mother raises a series of general and vague complaints directed at her second attorney related to this attorney's knowledge of various matters of courtroom procedure and the rules of evidence, as well as his failure to obtain respondent-mother's medical records. Respondent-mother additionally raises a serious of vague and conclusory assertions about various evidence she believes should have been introduced and argues that all four of her attorneys were ineffective because none of them introduced this evidence. For the same reasons stated above, these claims do not demonstrate that respondent-mother was prejudiced and therefore do not reflect that counsel was ineffective. Id.
Next, respondent-mother argues that her second attorney was ineffective for failing to admit into evidence a letter written by one of respondent-mother's service providers and apparently claiming that respondent-mother's foster-care case manager was biased against respondent-mother. However, there was testimony at respondent-mother's termination hearing about this alleged bias. Moreover, as with respondent-mother's other ineffective assistance of counsel claims, there is no indication that but for this letter not being admitted into evidence, the trial court would have found that respondent-mother had actually rectified her substance abuse and mental health issues. Jordan, 275 Mich App at 667. Respondent-mother's argument regarding this letter does not show that she received ineffective assistance of counsel because she has not demonstrated prejudice. In re Martin, 316 Mich App at 85.
Next, respondent-mother argues that this same attorney was ineffective based on his questioning of a witness who was a toxicologist at Forensic Fluids Laboratories and who testified about the results of drug tests administered to respondent-mother and the procedure and process used at Forensic Fluids. The gist of respondent-mother's appellate argument essentially appears to be that if not for the cutoff levels for determining that a test was positive for THC, she would not have tested "positive" for THC because her level of THC was often very low. However, this argument does not establish that she was somehow not using marijuana or that but for the manner in which her attorney questioned the toxicologist, the trial court would have concluded that respondent-mother's substance abuse problems had been rectified. Jordan, 275 Mich App at 667. Respondent-mother has not demonstrated that she was prejudiced by this alleged instance of deficient performance and thus has not established that she received ineffective assistance of counsel in this regard. In re Martin, 316 Mich App at 85.
Next, respondent-mother argues that this same attorney was ineffective because he touched her inappropriately, had numerous sexual conversations with her in his office that made her feel uncomfortable, indicated that he hoped the court would appoint him in cases after the conclusion of respondent-mother's cases, and shared the contents of her privileged conversations with her foster-care case manager. This attorney, who was retained by respondent-mother, was permitted to withdraw during the course of the multiple-day termination hearing because respondent-mother had terminated his representation of her. Even if we were to assume that this attorney acted unprofessionally, none of respondent-mother's claims relate to the pertinent question in this case—whether mother sufficiently rectified her substance abuse and mental health issues—and respondent-mother has not provided any explanation of how the outcome of these proceedings was affected by any of the alleged improper conduct by her second attorney. Pubrat, 451 Mich at 596-601. She has not shown that but for this conduct, there was a reasonable probability that her parental rights would not have been terminated. Jordan, 275 Mich App at 667. Because she was not prejudiced in the sense required in the context of an ineffective assistance of counsel claim, respondent-mother has not shown that these actions by this attorney denied her the effective assistance of counsel. In re Martin, 316 Mich App at 85.
Next, respondent-mother argues that this same attorney was ineffective because he had advised her to voluntarily relinquish her parental rights to the child. However, respondent-mother cannot show that she was prejudiced by this advice. She rejected this proposed course of action and proceeded to her contested termination hearing. She also terminated this attorney's representation of her before the termination hearing concluded. Furthermore, the fact that respondent-mother disagreed with the attorney's advice does not mean that his performance was below an objective standard of reasonableness. Id. Respondent-mother did not receive ineffective assistance of counsel in this regard. Id.
Next, respondent-mother argues that her third attorney, who had been appointed to replace respondent-mother's second attorney, provided ineffective assistance by failing to appear at a dispositional review hearing. Although the attorney was not present at the start of this hearing, the attorney arrived part way through the hearing and explained that she had been contacted by respondent-mother's newly retained attorney and thought that she had been replaced by this fourth attorney. The third attorney further indicated that she had been contacted by respondent-mother regarding transferring the transcripts to the fourth attorney.
Hence, to the extent that respondent-mother's third attorney failed to attend part of the hearing, it appears to have been the result of confusion created by respondent-mother's lack of clear communication. "Respondent may not assign as error on appeal something that she deemed proper in the lower court because allowing her to do so would permit respondent to harbor error as an appellate parachute." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115, 117 (2011). Moreover, the third attorney's performance was not below an objective standard of reasonableness considering that respondent-mother had essentially terminated their attorney-client relationship and waived this attorney's presence at the hearing. See In re Hall, 188 Mich App 217, 222; 469 NW2d 56 (1991) ("[A]n ongoing attorney-client relationship is essential to the continuation of appointed counsel. Here, respondent effectively terminated the attorney-client relationship [by failing to contact the appointed attorney for 16 months, not appearing at review hearings, and moving to an unknown address in Chicago], thereby 'waiving' or relinquishing her right to counsel until such time as she reasserted her right."). Respondent-parents in child protective proceedings have " 'some minimum responsibility' in regard to having counsel appointed for their benefit" and must take "affirmative action . . . in order to have an attorney appointed at statutory review hearings." Id. Accordingly, respondent-mother has not shown that her third attorney provided ineffective assistance by being absent from part of this review hearing.
Finally, with respect to her fourth attorney, respondent-mother argues that she was denied the effective assistance of counsel (1) because she could not effectively communicate with her fourth attorney during the termination hearing due to being shackled and (2) because her fourth attorney could not effectively prepare for the termination hearing due to respondent-mother's ADHD. However, respondent-mother has again failed to establish that she suffered any prejudice as a result of the alleged deficient performance on which she relies. Respondent-mother does not explain what information she would have communicated to her fourth attorney that she was prevented from conveying to this attorney. Moreover, the record reflects that this fourth attorney was extremely well prepared for respondent-mother's termination hearing: this attorney indicated that she had reviewed the transcripts, engaged in thorough cross-examination, presented witnesses on behalf of respondent-mother, and advocated forcefully on respondent-mother's behalf during the proceedings. Respondent-mother has not established that but for these alleged deficiencies, her parental rights would not have been terminated and thus has not shown that she was denied the effective assistance of counsel. Jordan, 275 Mich App at 667; In re Martin, 316 Mich App at 85.
V. CONCLUSION
The trial court did not err with respect to either respondent by concluding that there was a statutory ground to support terminating respondents' parental rights or that termination of each respondent's parental rights was in the child's best interests. Additionally, respondent-mother has not demonstrated that she was denied the effective assistance of counsel. We therefore affirm in both Docket No. 347100 and Docket No. 348825.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto