From Casetext: Smarter Legal Research

In re Elliott

STATE OF MICHIGAN COURT OF APPEALS
Feb 23, 2017
No. 333801 (Mich. Ct. App. Feb. 23, 2017)

Opinion

No. 333801

02-23-2017

In re ELLIOTT, Minors.


UNPUBLISHED Livingston Circuit Court Family Division
LC No. 15-014955-NA Before: BORRELLO, P.J., and MARKEY and M. J. KELLY, JJ. PER CURIAM.

Respondent-father appeals by right the trial court's order terminating his parental rights to two minor children under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood of harm). For the reasons stated in this opinion, we affirm.

The trial court also terminated the parental rights of the children's mother; she has not appealed that decision.

Petitioner filed for protective proceedings, alleging in part that respondent-mother routinely left the children in dirty diapers, left discarded diapers on the floor, and locked the children in a closet. Petitioner asserted that respondent-father admitted previous involvement with Child Protective Services (CPS) because of an unclean home, though he blamed respondent-mother and refused to take responsibility for the unsafe conditions. According to the petition, respondent-father admitted to a criminal history of minor assaults and drug possession, to having been involved in an incident of domestic violence with his mother, and to having been diagnosed with bipolar disorder and being "manic depressive." The court found that the allegations in the petition were proven by a preponderance of the evidence and exercised jurisdiction over the children.

Respondent-father did not attend the preliminary hearing, a subsequent pretrial hearing, the adjudication, or two dispositional review hearings. Respondent-father was facing criminal charges stemming from the sexual assault of a minor and had left the state in early 2015 before the preliminary hearing. He was eventually extradited back to Michigan from Minnesota and appeared for the first time at a dispositional review hearing held in the first week of January, 2016.

Respondent-father first argues that petitioner failed to provide him with the services he needed to remedy the conditions that resulted in removal of the children. He also claims he was prejudiced by the court's failure to appoint counsel to represent him until six months after the petition was filed and by the court's failure to secure his appearance by telephone for the first dispositional review hearing, even though it knew that respondent-father was incarcerated. None of these arguments were raised below, leaving them unreserved on appeal. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). Unpreserved claims of error, including claims of constitutional error, are reviewed for plain error affecting substantial rights. Id.; In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App at 9.

" 'Reasonable efforts to reunify the child and family must be made in all cases' except those involving aggravated circumstances . . . ." In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010) (quoting MCL 712A.19a(2); emphasis by the Court). Whether reasonable services were offered to a respondent ultimately relates to the sufficiency of the evidence for termination of parental rights. In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005).

CPS previously provided respondent-father services in 2011 regarding the children's unsafe living conditions. Respondent-father admitted that Mark Wheeler of the Department of Health and Human Services became involved with the case in January 2015 when respondent-father contacted CPS to report respondent-mother's neglect of the children. In late January 2015, Wheeler informed respondent-father he had to participate more with services and "need[ed] to be there for his children." But respondent-father stopped seeing his children and disappeared around March 2015, which in part, prompted the filing of the petition. Respondent-father testified that he had moved to Minnesota in February 2015 to accept a job, but he refused to disclose his whereabouts in March 2015 when he petitioner contacted him.

It is clear that petitioner did not fail to make reasonable efforts to provide services geared toward reunification. It is also clear that respondent-father was not taking full advantage of the services provided. Further, it was respondent-father who caused the interruption in services: he left the state unexpectedly and maintained minimal contact with petitioner thereafter. And after respondent-father was extradited back to Michigan on a charge of third-degree criminal sexual conduct (not involving the minors in issue), petitioner attempted to determine what services it could offer. But, caseworker Matthew Curnalia testified, no services were available to respondent-father while he was housed in jail because he had not yet been sentenced or pleaded guilty to any crime. Accordingly, respondent-father has not demonstrated plain error.

Respondent-father also complains that he was without counsel at the May 2015 adjudication. But respondent-father abandons this assertion by not articulating an argument or citing legal authority in support of it. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) (instructing that an argument is abandoned if a party fails to brief its merits or cite supporting authority). In any event, respondent-father had been provided notice of the March 20, 2015 preliminary hearing by means of a telephone message. He did not appear, and there is no indication that he sought the court's assistance in securing an attorney to represent his interests at the hearing. Counsel was appointed on September 1, 2015 when the court had notice that respondent-father's extradition from Minnesota was complete. No plain error is shown.

Next, respondent-father contends that the court failed to comply with MCR 2.004 because it did not secure his appearance by telephone at the first dispositional review hearing despite knowing that he was incarcerated. "MCR 2.004 requires the court and the petitioning party to arrange for telephonic communication with incarcerated parents whose children are the subject of child protective actions." In re Mason, 486 Mich at 152-153. But MCR 2.004 applies to a respondent in a termination proceeding who "is incarcerated under the jurisdiction of the Department of Corrections." MCR 2.004(A) (emphasis added). MCR 2.004 is inapplicable to a person under the jurisdiction of analogous departments in other jurisdictions. In re BAD, 264 Mich App 66, 71; 690 NW2d 287 (2004). As of the first dispositional review hearing, respondent-father was in Minnesota awaiting extradition. Again, no plain error is shown.

Respondent-father next argues that the trial court clearly erred by terminating his parental rights under MCL 712A.19b(3)(c)(i). Subsection 19b(3)(c)(i) provides that a court may terminate a respondent's parental rights if finds by clear and convincing evidence 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 . . .:

(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.

The trial court expressly adopted the recommendations of the hearing referee, who identified the conditions leading to adjudication as improper supervision of the children, poor parenting skills, physical neglect, substance abuse, mental health issues, and lack of stable income and housing. The referee concluded that the conditions leading to adjudication remained because respondent-father and respondent-mother had not demonstrated appropriate parenting skills, had not addressed their substance abuse or mental health issues, and had not established stable income or housing. Respondent-father does not contest these findings. Instead, he asserts that petitioner did not provide the requisite services or explain what services were available until five days before trial. This argument has been considered and dismissed as without merit above.

Citing In re Mason, 486 Mich 142, respondent-father also contends that the court failed to consider that the children were placed with his parents while he was in jail, and they provided proper care. Respondent-father does not explain how the discussion in In re Mason, 486 Mich at 163-164 involving MCL 712A.19b(3)(h) (parent imprisoned) and MCL 712A.19b(5) (best interests of child) applies to findings regarding MCL 712A.19b(3)(c)(i). In any event, the matter was considered, with the referee finding that the children were removed from placement with respondent-father's parents in March 2016 after CPS substantiated allegations of abuse against them. In sum, the evidence adduced supported termination under MCL 712A.19b(3)(c)(i), and respondent-father has not demonstrated that the trial court clearly erred.

Because "[o]nly one statutory ground need be established by clear and convincing evidence to terminate a respondent's parental rights," we will not consider the two other statutory grounds the trial court found. In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011).

Respondent-father next argues that termination of his parental rights was not in the best interests of the children. "[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence." In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court's decision regarding the child's best interests is reviewed for clear error. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). "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).

"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 Minors, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). When considering whether termination of parental rights is in the child's best interests, the court may consider "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 a parent's history of domestic violence, the parent's compliance with his or her case service plan, the parent's visitation history with the child, the children's well-being while in care, and the possibility of adoption." In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014).

"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." --------

In the instant case, the record evidence supports the referee's finding that respondent-father had no contact with his children for over a year. While this was partly the result of involuntary incarceration, it was respondent-father's own actions and decisions that resulted in the criminal charges and his moving to Minnesota. The referee was skeptical that respondent-father shared a bond with the children because of the extended lack of contact and concluded that in any event any parent/child bond would not protect the children from dangerous parenting practices, the consequences of respondent-father's untreated mental health issues, and his substance abuse. The referee also correctly noted that although respondent-father was complaining about the lack of services available while he was in jail, petitioner had offered respondent-father services for years before the petition was filed. He did not, however, participate in or benefit from the offered services. Further, respondent-father testified that even if released immediately, he would need approximately a year of services "to address just his financial stability." The referee reasonably believed that was too long given the children's need for a permanent and stable home life. The referee acknowledged that a parent could achieve proper custody through relative placement, but also noted that the children were removed from the home of their paternal grandparents after petitioner substantiated allegations of abuse against them.

The referee was rightly skeptical that any bond existed between respondent-father and the children given his lack of contact with them. This lack of contact at such a young age, primarily the result of respond-father's not having participated in the children's lives, would understandably weaken any bond that might have existed. An example of this is found in the testimony of caseworker Curnalia, who explained that the children have never expressed concerns about respondent-father's absence in their life during the time that they have not seen him. Moreover, the referee reasonably concluded that the mere existence of a bond could not justify maintaining the parent-child relationship given the deficiencies in respondent-father's parenting skills. In short, respondent-father did not demonstrate that the trial court clearly erred by determining that termination was in the children's best interests.

We affirm.

/s/ Stephen L. Borrello

/s/ Jane E. Markey

/s/ Michael J. Kelly


Summaries of

In re Elliott

STATE OF MICHIGAN COURT OF APPEALS
Feb 23, 2017
No. 333801 (Mich. Ct. App. Feb. 23, 2017)
Case details for

In re Elliott

Case Details

Full title:In re ELLIOTT, Minors.

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Feb 23, 2017

Citations

No. 333801 (Mich. Ct. App. Feb. 23, 2017)