Opinion
No. 344521
04-18-2019
In re WASHINGTON, 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 UNPUBLISHED Wayne Circuit Court Family Division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. 01-402753-N Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ. PER CURIAM.
Respondent appeals as of right the order terminating his parental rights to the minor children, RW, KW and RVW, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood that child will be harmed if returned to parent). We affirm.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. The trial court's order in this case was entered on May 15, 2018. Under the prior version of the statute, a court could terminate parental rights if "[t]he parent, without regard to intent, fails to provide proper care or custody for the child," with no reasonable expectation that the parent would provide proper care and custody in a reasonable amount of time, given the child's age. See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quoting the prior version of MCL 712A.19b(3)(g)). Under the new version of the statute, termination is warranted where "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child. . . ." MCL 712A.19b(3)(g), as amended by 2018 PA 58. Consideration of the parent's financial ability to provide proper care or custody is the only major change to the statutory language; the text of the provision was not otherwise amended.
I. STATUTORY BASES
Respondent argues that there were not statutory grounds to support the termination of his parental rights. We disagree.
"This Court reviews for clear error the trial court's ruling that a statutory ground for termination has been established . . . ." In re Schadler, 315 Mich App 406, 408; 890 NW2d 676 (2016). Statutory grounds for termination must be established by clear and convincing evidence. Id. A factual finding is clearly erroneous "if, although there is evidence to support it, [this Court is] left with a definite and firm conviction that a mistake has been made." Id.
The trial court did not err by terminating respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i) because clear and convincing evidence existed to show that respondent failed to complete his parent-agency agreement ("PAA"), and more than 182 days had passed since the initial dispositional order regarding RW and KW was entered on November 18, 2014. Additionally, more than 182 days had passed since the trial court entered its original dispositional order regarding RVW on November 25, 2015. MCL 712A.19b(3)(c)(i) provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . . .
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(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 . . . .
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified in a reasonable time considering the child's age. [MCL 712A.19b(3)(c)(i); In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014).]
Participation in a PAA is considered insufficient if the respondent "fail[s] to demonstrate sufficient compliance with or benefit from those services specifically targeted to address the primary basis for the adjudication in th[e] matter . . . ." In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). Clear and convincing evidence was presented to demonstrate that the conditions leading to adjudication were still in existence at the time of termination. The initial dispositional order regarding RW and KW was entered on November 18, 2014, and the initial dispositional order regarding RVW was entered on November 25, 2015, but respondent failed to successfully improve his parenting skills before the date of the termination hearing, which took place on May 8, 2018. Far more than 182 days passed between the time that the initial dispositional orders were entered and the date of the termination hearing.
Respondent attempted to participate in the programs required through the PAA, and completed parenting classes and individual therapy sessions. However, the record indicated that, even after attempting to comply with the PAA for approximately four years, respondent never fully adhered to the PAA's directives. Respondent failed to maintain housing that was suitable for children and was periodically homeless. At the time of the statutory bases and best-interest hearing, respondent was living in Section 8 housing that was not large enough for three children, and had only recently gotten a job as a janitor after a lengthy period of unemployment. Respondent had no definite plans for how he would care for the children, and acknowledged that he had no transportation and no knowledge of the expenses involved with taking care of children, including the cost of daycare.
RW and KW were taken into temporary custody in October 2014. At that time, RW was approximately one year old, and KW was less than one month old. RVW was taken into temporary custody in October 2015, and was also less than one month old at the time. Essentially, all three children have been in stable foster homes for their entire lives. To delay the termination of respondent's parental rights any longer would be unfair and detrimental to the children, who deserve the opportunity to grow up in a stable environment where they will be safe and able to thrive. The children cannot be forced to wait for respondent to become a responsible and stable parent. See In re Terry, 240 Mich App 14, 23; 610 NW2d 563 (2000) (holding that delaying termination of the respondent's parental rights to allow the respondent more time to learn basic parenting skills would not be in the best interests of the children). There was little likelihood that respondent would have been able to rectify the barriers to reunification that still existed at the time of the statutory bases and best-interest hearing, and thus, the trial court did not clearly err by terminating respondent's parental rights under MCL 712A.19b(3)(c)(i).
Although only one statutory ground for termination must be proven by clear and convincing evidence, the remainder of the factors raised herein were also supported by the evidence. See In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011) (stating that at least one factor under MCL 712A.19b(3) must be supported by clear and convincing evidence in order for termination of parental rights to be proper).
The trial court did not err by terminating respondent's parental rights pursuant to MCL 712A.19b(3)(g).
MCL 712A.19b(3)(g) provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . . .The record supports termination of respondent's parental rights under MCL 712A.19b(3)(g) because he failed to provide proper care and custody for the children. During the four years that the children were in petitioner's temporary custody, respondent never fully complied with the PAA by obtaining proper housing or stable employment, and he struggled with substance abuse issues in the months leading up to the statutory bases and best-interest hearing. "[F]ailure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." In re JK, 468 Mich 202, 214; 661 NW2d 216 (2003). Without housing and employment, respondent cannot provide proper care and custody for the children. Respondent also repeatedly failed to appear for parenting time sessions, and went so far as to lie and say that he was working to avoid attending parenting time sessions.
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(g) The 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. [MCL 712A.19b(3)(g); In re White, 303 Mich App at 710.]
Respondent missed 70 out of a total of 172 scheduled parenting time visits and struggled to control and discipline the children during the visits. Further, there was little evidence that respondent shared a bond with the children, who were in foster care for the majority of their lives. Respondent had ample time and opportunity to make a concerted effort to comply with the PAA and establish himself as a parent who could provide proper care and custody for the children, but never showed signs of stability and consistent improvement. Therefore, the trial court did not clearly err by finding that respondent would be unable to provide proper care and custody for the children within a reasonable time.
On appeal, respondent points to this Court's decision in In re Tedder, 150 Mich App 688, 698; 389 NW2d 149 (1986), in which a panel of this Court stated that for termination to be warranted pursuant to a predecessor statute authorizing termination of parental rights, MCL 712A.19(a)(e), the statute required "some degree of culpability by way of either intentional or negligent disregard of the child's needs." However, in In re Jacobs, 433 Mich 24, 35-36; 444 NW2d 789 (1989), the Supreme Court observed that subsequent amendments to the statute "eliminated any ambiguity regarding the requirement of culpable neglect" and allowed termination of parental rights on the basis of neglect without regard to intent. Id. at 36-37. --------
The trial court properly concluded that clear and convincing evidence existed to support the termination of respondent's parental rights under MCL 712A.19b(3)(j).
MCL 712A.19b(3)(j) provides:
(3) The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence . . . .If the children were returned to respondent's custody, they would be at risk of harm because respondent has consistently failed to maintain a stable job or suitable housing for the children. At the time of the statutory bases and best-interest hearing, respondent was living in Section 8 housing that petitioner deemed too small for three children, and it was unclear whether respondent would be able to secure suitable Section 8 housing if he regained custody of the children. Respondent had only been employed as a janitor for two months before the hearing, and did not have any personal means of transportation. Respondent had also been sober and testing negative for marijuana for less than six months at the time of the statutory bases and best-interest hearing.
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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.]
Respondent's failure to maintain suitable housing and a stable income, along with his substance abuse issues, indicate that there is a reasonable likelihood that the children would be harmed if returned to his care. This Court has previously determined that "harm" can include "emotional harm[,]" such as depriving a child of a normal childhood home. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011). Respondent's behavior and lifestyle indicate, if returned to his custody, that the children would be subjected to an unsure and unstable home environment in which they could be physically or emotionally harmed. Therefore, the trial court did not err in concluding that clear and convincing evidence supported termination of respondent's parental rights under MCL 712A.19b(3)(j). Accordingly, respondent's claim is without merit.
II. BEST INTERESTS
Respondent argues that, because he successfully completed the PAA and had a bond with the children, the trial court erred in finding that the termination of his parental rights was in the children's best interests. Respondent also argues that the trial court should have engaged in a financial analysis when making a best-interest determination, and contends that he was given an insufficient amount of time in which to rectify the conditions that eventually led to the termination of his parental rights. 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 that it has been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child . . . ." In re Schadler, 315 Mich App at 408. "[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.
The trial court may consider a number of factors when determining whether the termination of a respondent's parental rights is in the child's best interests. These factors include the following:
"[T]he 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 . . . the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's wellbeing while in care, and the possibility of adoption. [In re White, 303 Mich App at 713-714, quoting In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012).]The trial court's best-interests analysis focused on the children's need for a stable home. The trial court opined that allowing the children to remain in long-term foster care placements, where they would eventually be eligible for adoption, would be more appropriate than returning the children to respondent's custody. The trial court stated that "the best way that the children can receive th[eir] needs are through adoption[.]" The trial court's findings properly supported the overall determination that termination of respondent's parental rights was in the children's best interests.
Respondent nevertheless argues that the trial court erred by finding that termination was in the children's best interests because he successfully completed his PAA and shared an undisputed bond with the children. The PAA required respondent to complete individual therapy and parenting classes, obtain suitable housing and a legal source of income, participate in parenting time, remain in contact with CPS and petitioner, and attend scheduled court dates. A review of the record indicates that, at the time of the hearing, respondent had not successfully completed his PAA by finding suitable housing for the children. Respondent agreed that he was living in Section 8 housing that was too small for three children. Respondent admitted that he had issues with substance abuse and maintaining a steady job, which were not fully resolved at the time of the statutory bases and best-interest hearing. Respondent failed to attend 70 out of 172 parenting time visits, and lied to avoid attending on many occasions by stating that he had to work, when in reality he was unemployed and homeless. Thus, respondent incorrectly argues that he complied with the PAA.
Additionally, a CPS worker testified that, based on her observations of respondent's interactions with the children during parenting time sessions, respondent and the children did not share a significant emotional bond. Therefore, contrary to respondent's contention, whether a bond existed between respondent and the children was a disputed fact. Beyond its review of the evidence documenting respondent's progress toward establishing a bond with the children, the trial court also had the authority to attribute credibility to witness testimony as it deemed fit, and this Court "give[s] due regard to the trial court's special opportunity to observe the witnesses." In re Dearmon, 303 Mich App 684, 700; 847 NW2d 514 (2014) (citation and quotation marks omitted).
Respondent next argues that the trial court should have engaged in an analysis of his finances as part of its best-interests determination in order to ascertain whether he was truly unable to support his children. Respondent suggests that the trial court erred in not doing so. However, respondent cites to no authority stating that the trial court must engage in such an analysis. Rather, respondent merely states that the trial court should have discussed his financial ability to support the children. In general, "[t]his Court will not search for authority to sustain or reject a party's position[,]" and by failing to cite to supporting authority, respondent has abandoned this issue. King v Oakland Co Prosecutor, 303 Mich App 222, 236; 842 NW2d 403 (2013) (quotation marks and citation omitted). Moreover, as previously noted, the trial court properly analyzed whether termination of respondent's parental rights was in the children's best interests based on the best-interest factors enunciated in In re Olive/Metts, 297 Mich App at 41-42, and did not clearly err by failing to specifically discuss respondent's finances.
Finally, respondent argues that he deserves more time to successfully reunite with the children. In support of his argument, respondent cites to In re Boursaw, 239 Mich App 161, 176; 607 NW2d 408 (1999), overruled in part on other grounds by In re Trejo, 462 Mich 341, 353; 612 NW2d 407 (2000), in which this Court concluded that termination should not be ordered where the respondent "had made significant strides toward remedying the problems that had brought this matter to [the] petitioner's attention." Respondent argues that termination of his parental rights was premature because he was making an effort to remedy the issues that led petitioner to take temporary custody of the children. However, respondent's reliance on Boursaw is misplaced. In Boursaw, the trial court terminated the respondent's parental rights after only 10 months, despite the respondent's significant efforts to comply with a PAA. Id. at 163, 168, 173-175. The respondent was required to participate in therapy and parenting classes, participate in an employment program or apply for Supplemental Security Income ("SSI") benefits, and complete 20 hours of community service per month. Id. at 165. In the 10 months leading to the termination of her parental rights, the respondent participated fully in therapy and parenting classes, and obtained employment, transportation, and housing. Id. at 173-175.
Conversely, respondent has had four years to comply with the PAA, and at the time of the statutory bases and best-interests hearing, respondent still lacked suitable housing, had no means of transportation, had only been employed for a brief period of time, and repeatedly missed a large number of parenting time sessions. Respondent failed to make the same sort of substantial progress as the respondent in Boursaw, even after four years of attempting to comply with the PAA. Thus, the trial court's termination of respondent's parental rights was not prematurely ordered, and overall, the trial court did not clearly err by finding that the termination of respondent's parental rights was in the children's best interests.
Affirmed.
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
/s/ Michael F. Gadola