Opinion
No. 344386
02-21-2019
In re TAURIAINEN, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Delta Circuit Court Family Division
LC Nos. 18-000358-NA; 18-000359-NA Before: METER, P.J., and SAWYER and CAMERON, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor children, HT and LT, under MCL 712A.19b(3)(j) (reasonable likelihood of harm if returned to the parent). We affirm.
The trial court also terminated the parental rights of the children's father; however, he is not a party to this appeal.
In February 2018, the Department of Health and Human Services (DHHS) filed a petition seeking removal of LT and HT from their parents' home, and termination of respondent's parental rights on the basis of her ongoing substance abuse, mental health concerns, and the prior termination of respondent's rights to a third child, SB, in 2003. Following a bench trial and termination hearing, the trial court terminated respondent's parental rights.
I. STATUTORY GROUNDS
On appeal, respondent argues that the trial court erred when it found that there was clear and convincing evidence to terminate her parental rights. We disagree.
"In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich App 120, 139; 809 NW2d 412 (2011). The trial court's finding that a ground for termination has been established is reviewed for clear error. MCR 3.977(K); In re Rood, 483 Mich 73, 90-91; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." Rood, 483 Mich at 90.
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(j), which provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:
* * *
(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.
The harm contemplated by MCL 712A.19b(3)(j) encompasses both physical and emotional harm. See In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). Moreover, termination may be based on substance abuse and mental illness when they lead the respondent to have thoughts of harming his or her child. See In re Moss, 301 Mich App 76, 81; 836 NW2d 182 (2013). Indeed, this Court has held that a respondent's failure to address long-standing substance abuse combined with emotional instability and aggression may support termination of a respondent's parental rights under MCL 712A.19b(3)(j). In re Gonzales/Martinez, 310 Mich App 426, 432-433; 871 NW2d 868 (2015).
Respondent's substance abuse is not detached from neglect. Rather, the record indicates that respondent's substance abuse placed the children in danger of emotional and physical harm and warranted repeated involvement by CPS. CPS investigator Jonel Nelson testified that she completed three CPS investigations involving respondent, with the first investigation beginning in June 2017, following allegations that respondent was abusing her prescription drugs while pregnant with LT. While she did not find enough evidence to substantiate the allegations, she addressed concerns about keeping medication in a lockbox, and because respondent had a seizure disorder, she encouraged respondent to have a plan for HT's care in case she had a seizure.
The second investigation was initiated by respondent's husband in August 2017, after respondent took 20 to 30 Benadryl, made suicide threats, and acted "angry, destructive, and belligerent." At that time, a safety plan was developed that HT would not be left unsupervised with respondent until after further evaluation of her mental health.
The third investigation was based on a report that LT was born drug-exposed to respondent's medications. Based on her investigation, Nelson concluded that LT was exposed to only prescribed medications. However, as a result of the drug exposure, LT remained in the neonatal intensive care unit for two or three weeks while undergoing treatment for withdrawal symptoms.
Throughout these investigations, respondent was offered several voluntary services, but Nelson did not believe respondent used any of the services. Nelson never observed respondent under the influence but recognized that all of her visits were scheduled. In September 2017, there was still an ongoing investigation concerning respondent being left unsupervised with the children.
The allegations in January 2018 again involved concerns about respondent's drug use and unstable mental health. CPS worker Adoree' Killips testified that when she arrived at respondent's home, respondent appeared to be "under the influence of something" and did not appear to be able to care for the children "alone." Between January 17, 2018, and February 7, 2018, respondent underwent three drug screens, and she tested positive for cocaine during a random drug screen. Moreover, Killips was informed that respondent crushed and snorted her medications, raising concerns with how respondent took the medication and that she was taking "too much of it."
Respondent's sister-in-law testified that respondent was often affected by taking her medications, and was frequently sleeping. On one occasion, she observed respondent fall asleep with a lit cigarette. Respondent also admitted to her that she took Ritalin without a prescription. Respondent would crush up her prescriptions and snort them, including at times when the children were present.
Moreover, video footage of respondent's condition while attending a court hearing in February 2018 reinforced Killips's testimony that respondent was unable to care for the children while under the influence. Respondent walked with poor stability, stumbled, and swayed back and forth in her seat in the courtroom until at one point she fell forward and hit her head on the chairs in front of her. Killips also observed respondent to be under the influence of substances, slurring, unsteady when on her feet and seated, and having trouble staying awake.
Additionally, respondent's sister-in-law testified that respondent told her that she did not love or want LT. Respondent would call LT names and tell her sister-in-law to come over to take care of LT "before she smothers her" or other such statements. Respondent would also threaten to strangle LT. Respondent's sister-in-law would help because both respondent and the children's father indicated that they didn't trust respondent with LT. At times, respondent would call her sister-in-law for help and say, "Come get your baby before I strangle her." Further, Killips testified that respondent stated, "You can throw [LT] out in the snow for all I care." On another occasion, Killips became concerned for LT because as respondent was stepping over the bed to retrieve some medications, she nearly stepped on LT, who was lying on the bed.
The trial court concluded that respondent had a long history of drug use, and that although she had prescriptions, it appeared that respondent was misusing the prescriptions to the point that she could not function in a capacity to protect her children. Although DHHS tried to work with respondent, she did not follow safety plans. Respondent was not bonded with LT as evidenced by her statements and action of nearly stepping on the child. Three prior investigations were attempted, and respondent tested positive for cocaine during a random drug screen. Moreover, respondent would fall asleep while smoking cigarettes, and this presented a clear danger to the children. Accordingly, there was clear and convincing evidence that there was a reasonable likelihood that the children would be harmed if they were returned to respondent.
Furthermore, a respondent's failure to participate in and benefit from the case-services plan is evidence that the child may be harmed if returned to the parent's home. In re White, 303 Mich App 701, 711; 846 NW2d 61 (2014). In this case, although respondent was never provided a written case-service plan, as noted above, several safety plans were put into place in 2017 and 2018. However, Killips indicated that respondent did not believe she had an issue with substance abuse because it was her own prescriptions, and she had no plans to rectify the problem.
In sum, there was ample evidence to establish that the children would be subjected to harm if returned to respondent's care. Therefore, the trial court did not clearly err by terminating respondent's parental rights under MCL 712A.19b(3)(j).
Respondent's counsel also suggests that the termination of parental rights on the basis of MCL 712A.19b(3)(j) alone is improper. Respondent's argument is meritless. A petitioner must establish by clear and convincing evidence at least one statutory ground for termination of parental rights. In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003); MCL 712A.19b(3). Whenever this Court concludes that the trial court did not clearly err in finding one statutory ground for termination, no additional grounds are necessary for termination. In re HRC, 286 Mich App 444, 461; 781 NW2d 105 (2009). In this case, while the trial court determined that there was insufficient evidence to establish the only other statutory ground cited in the petition for termination, MCL 712A.19b(3)(i), it determined that the statutory basis for termination under MCL 712A.19b(3)(j) was shown by clear and convincing evidence. Accordingly, because we also conclude that the trial court did not clearly err in finding that DHHS met its burden of proving one statutory ground, that single statutory ground is sufficient to support termination. HRC, 286 Mich App at 461.
II. BEST INTERESTS
Respondent also argues that the trial court erred when it found by a preponderance of the evidence that termination of her parental rights was in the children's best interests. We disagree.
"Once a statutory ground for termination has been proven, the trial court must find that termination is in the child's best interests before it can terminate parental rights." In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). When considering best interests, the focus is on the child, not the parent. Moss, 301 Mich App at 87. "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." Id. at 90.
This Court reviews the trial court's determination of best interests for clear error. Olive/Metts, 297 Mich App at 40. "A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court's special opportunity to observe the witnesses." BZ, 264 Mich App at 296-297. "Appellate courts are obliged to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." Rood, 483 Mich at 90.
"The trial court should weigh all the evidence available to determine the child's best interests." White, 303 Mich App at 713. The trial court may consider such factors as "the child's bond to the parent, the parent's parenting ability, [and] the child's need for permanency, stability, and finality . . . ." Olive/Metts, 297 Mich App at 41-42 (citations omitted). Other factors that the trial court may consider include the parent's compliance with her case service plan, and the possibility of adoption. White, 303 Mich App at 714. The trial court may also consider the likelihood that "the child could be returned to [the] parents' home within the foreseeable future, if at all." In re Frey, 297 Mich App 242, 248-249; 824 NW2d 569 (2012). Further, the trial court may consider the parent's substance-abuse problems. In re AH, 245 Mich App 77, 89; 627 NW2d 33 (2001) (observing that the trial court correctly concluded that termination of parental rights was in the best interests of the child after considering, among other factors, the respondent's substance abuse problems). Moreover, a trial court must "explicitly address whether termination is appropriate in light of the children's placement with relatives." Olive/Metts, 297 Mich App at 43.
First, respondent asserts that the trial court failed to consider the children's pending reunification with their father as a factor that weighed against termination, "which is similar to relative placement." Our Michigan Supreme Court has stated that "a child's placement with relatives weighs against termination . . . ." In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010). However, respondent provides no authority for the claim that the mere potential reunification with a parent is "similar to relative placement." Moreover, respondent acknowledges that the children were not in relative placement. Accordingly, the trial court was not required to weigh the children's placement with him against termination. In re Schadler, 315 Mich App 406, 413; 890 NW2d 676 (2016).
Respondent also argues that foster care worker Elizabeth Wayne's testimony was stricken by the court and should not have been considered because the court did not "unstrike it." Additionally, she argues that foster care case monitor Danielle Reed's "poor quality" testimony led to "contamination by stricken evidence and testimony." However, these arguments were not raised in the trial court and are unpreserved. Accordingly, our review is limited to plain error affecting her substantial rights. People v Knox, 469 Mich 502, 508; 674 NW2d 366 (2004).
At the conclusion of a May 2018 hearing, the trial court took a brief recess with counsel and upon return indicated that it had mistakenly determined that the rules of evidence had not barred the admission of petitioner's exhibits and "some testimony." Accordingly, the trial court indicated it was agreed that the court would "strike the exhibits, as well as the testimony" and proceed at the next hearing. However, when Wayne was unavailable for the best-interests portion of the hearing, an inquiry was made as to whether the prior testimony could be considered.
We first note that when asked whether there was an objection to the consideration of Wayne's prior testimony, respondent's counsel indicated that because hearsay was admissible in the best-interests portion of the proceedings, she had no objection. Generally, a party may not intentionally relinquish, abandon, or waive a right at the trial court level and then argue on appeal that the resultant action was error. See People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). Notwithstanding this waiver, respondent fails to identify how the use of Wayne's testimony affected her substantial rights. This Court is not required to unravel and elaborate on respondent's arguments and may deem the argument abandoned. People v Cameron, 319 Mich App 215, 232; 900 NW2d 658 (2017). In any event, the trial court did not refer to Wayne's testimony in rendering its decision to terminate respondent's parental rights; therefore, no plain error is evident in the record. Knox, 469 Mich at 508.
Additionally, respondent did not object to Reed's testimony during the best-interests portion of the trial. While respondent now argues that the testimony was "too peripheral and uninvolved," respondent fails to identify how Reed's testimony affected her substantial rights. Further, respondent's failure to elaborate renders this argument abandoned. Cameron, 319 Mich App at 232. Moreover, the record reflects that Reed had knowledge of the case based on her monitoring of the case and attendance at trial, and in speaking with the assigned foster care worker. Accordingly, Reed was able to provide competent testimony based on her personal knowledge. While Reed acknowledged that she did not work with the parents directly, this fact was not dispositive because the trial court's consideration at this stage was the children's best interests and not respondent's. Moss, 301 Mich App at 87. Accordingly, the trial court did not plainly err in considering Reed's testimony as it pertained to her knowledge of the children's foster care status.
Lastly, respondent argues that the trial court, in the best-interests phase of the proceedings, incorrectly relied on In re Dittrick, 80 Mich App 219; 263 NW2d 37 (1978), and In re LaFlure, 48 Mich App 377; 210 NW2d 482 (1973), for the proposition that how a parent treats one child is indicative of how another child might be treated. Respondent argues that these inferences are usually made only in the adjudicative phase of the proceedings, and that they "lack[] any factual nexus" given that respondent's prior termination was 15 years ago when she was 17 years old. However, respondent cites no authority for the proposition that reliance on these precedential cases in the best-interests phase constitutes error by the trial court. Moreover, it is well established that the doctrine of anticipatory neglect "recognizes that how a parent treats one child is certainly probative of how that parent may treat other children." AH, 245 Mich App at 84, quoting LaFlure, 48 Mich App at 392. The doctrine exists to guarantee the protection of a child when there is good reason to believe that the child will be abused or neglected because of the past conduct of the respondent. AH, 245 Mich App at 84.
In this case, CPS supervisor Tammy Marenger testified that in 2003, she investigated respondent in her role as a CPS investigator after receiving a complaint that respondent gave birth to a drug-exposed infant. Respondent was 17 years old and was not interested in obtaining services, and she signed away her parental rights instead. Respondent did not comply with the service plan. Further, in the current case, Killips testified that respondent did not have a bond with LT and did not interact with LT during any of the home visits. Killips indicated that there would be a risk to the children if returned to respondent because respondent did not believe she had an issue with substance abuse because it was her own prescriptions, and that she had no plans to rectify the problem.
Furthermore, at the start of the case, respondent suggested that she was leaving the marital home and inquired about releasing her parental rights to her husband. After the children's removal, respondent was found unresponsive and surrounded by bottles and a recently extinguished fire. At that time, respondent's husband informed Public Safety Officer Tabitha Marchese that respondent was pregnant and drank bleach. Respondent informed Marchese that she didn't care about the baby and she hoped it died. Respondent also told Marchese "that her husband was trying everything he could to get [her children] back, and she was going to make it her mission that he wouldn't be able to get them back."
On this record, it is clear that despite her prior termination brought on by substance use, respondent continued to abuse substances 15 years later and still had no interest in addressing her issues or parenting her children. Given respondent's repeated failure to comply with the agency's plan, continued substance abuse issues, and seeming dislike for parenting, it was highly unlikely that the children could be returned to respondent's care "within the foreseeable future, if at all." Frey, 297 Mich App at 249.
Moreover, the record is clear that a significant number of factors weighed heavily in favor of terminating respondent's parental rights. The trial court concluded that respondent had a long history of drug use, and although she had prescriptions, it appeared that respondent was misusing the prescriptions to the point that she could not function in a capacity to protect her children. Although DHHS tried to work with respondent, she did not follow safety plans. Three prior investigations were attempted, and respondent tested positive for cocaine during a random drug screen. Respondent would fall asleep while smoking cigarettes, and this presented a clear danger to the children. Additionally, the trial court was pleased that there was a possibility of adoption by the foster parents if reunification with the father was unsuccessful. In sum, the trial court did not clearly err in finding that a preponderance of the evidence established that termination of respondent's parental rights was in the best interests of the children.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron