in Re C J W Garno Minor

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re C. J. W. GARNO, Minor. May 26, 2015

No. 323830

Saginaw Circuit Court

Family Division

LC No. 13-033691-NA

Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.

PER CURIAM.

Respondent father appeals as of right the trial court order terminating his parental rights

to his minor son (born September 2009) pursuant to MCL 712A.19b(3)(c)(i) (conditions that led

to adjudication continue to exist) and MCL 712A.19b(3)(g) (failure to provide proper care or

custody).1 We affirm.

I. FACTUAL BACKGROUND

According to the petition, on December 6, 2012, the minor was a passenger in a car when

respondent and the minor’s mother went to purchase crack cocaine. The police stopped the car

and they found a crack pipe and alcohol in the minor’s diaper bag. The respondent then was

arrested pursuant to an outstanding bench warrant. The minor was eventually placed with the

paternal grandmother.

Initially, the respondent missed several hearings, in part because of his fear of being

arrested pursuant to other outstanding bench warrants. Then, at the time of a review hearing on

May 2013, respondent was incarcerated. Respondent then transferred to a halfway house called

the “Tri-Cap” program in September 2013.

At a review hearing in December 2013, the foster-care worker testified that most services

were provided to respondent through Tri-Cap, and he attended “My Team” meetings, which are

group meetings that focus on strengths and barriers to reunification. Respondent attended visits

with the minor, and exhibited a strong bond. Yet, the worker testified that even though she had

1

The parental rights of the child’s mother also were terminated. She is not a party to this appeal,

so “respondent” will refer to the child’s father.

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reviewed the parent-agency treatment plan with respondent, he was not keeping in contact with

her or following through with his required assignments.

It soon became apparent that respondent’s stay at Tri-Cap was relatively turbulent.

Although he arrived at the halfway house, he was discharged shortly thereafter. Respondent’s

attorney made an offer of proof that respondent was discharged because he made an

unauthorized departure from work because his father-in-law broke his foot. However, when

respondent returned Tri-Cap, he tested positive for cocaine. He also failed to keep in contact

with the foster-care worker or report to her on the effect his substance abuse has on his son.

At the permanency planning hearing held in March 2014, the foster-care worker

recommended a continued goal of reunification since the structure of Tri-Cap did not allow for

respondent to demonstrate significant progress. The trial court concurred that reunification

remained the goal, but warned that if substantial progress was not made at the next review

hearing, the proceedings would move in a different direction.

At the next review hearing on May 28, 2014, it was revealed that another bench warrant

had been issued for respondent.2 As an apparent consequence, he did not appear at that hearing.

Similarly, at the review hearing on June 4, 2014, respondent was not present, and his

whereabouts were unknown. At the permanency planning hearing on July 9, 2014, respondent’s

whereabouts continued to be a mystery, as even his attorney revealed that he had not heard from

respondent in quite some time. The foster-care worker also had not heard from respondent since

April. However, the minor’s mother testified that respondent called her daily.

The proceedings progressed to termination on August 28, 2014. Respondent testified that

he currently was incarcerated for “absconding-probation violation” with respect to a possession

of cocaine charge. He claimed that he successfully completed the Tri-Cap program on April 4,

2014. However, after completing the program, he failed to submit to urine screens and failed to

provide timely proof of substance abuse treatment. His probation officer ordered him to return to

Tri-Cap near the end of April 2014. While respondent initially complied, he then left the

program after only a few days. Respondent testified that because of his departure, a bench

warrant was issued for his arrest, and he was arrested on July 14, 2014. He explained that upon

his release from jail, he again was supposed to return to Tri-Cap.

Respondent explained that he failed to visit the minor for several months because he had

concerns about getting arrested. However, he also admitted that his mother let him visit the

minor when he had a warrant out for his arrest, although he did not know if his mother knew

about the warrant.

The foster-care worker testified that termination was in the minor’s best interests because

the child had been in foster care for 18 months and respondent had not shown any improvement

in his parenting skills. She explained that the minor needed to be in a safe and stable

2

According to respondent’s explanation at the termination hearing, the bench warrant resulted

because he was ordered to complete another stint in Tri-Cap, and he refused.

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environment, which respondent could not provide at that time or in the near future. She further

explained that respondent was referred to “Strong Families/Safe Children” upon his discharge

from Tri-Cap to address parenting skills, but he did not attend. She also revealed that respondent

had not cooperated with drug screens. Ultimately, the foster-care worker recommended

termination rather than a guardianship because it was more permanent, the history of the case

and respondent’s behavior, and because of conflicts between paternal relatives and the child’s

mother.

The trial court found clear and convincing evidence of termination pursuant to MCL

712A.19b(3)(c)(i) and (g), and that termination was in the minor child’s best interests.

Respondent now appeals.

II. STATUTORY GROUNDS

A. STANDARD OF REVIEW

“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). “We review the trial

court’s determination for clear error.” Id. “A decision is clearly erroneous when, 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.” In re B & J, 279 Mich App 12, 17-18; 756

NW2d 234, 238 (2008) (quotation marks and citation omitted).

B. ANALYSIS

MCL 712A.19b(3)(c)(i) provides for termination when:

(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.

“This statutory ground exists when the conditions that brought the children into foster care

continue to exist despite time to make changes and the opportunity to take advantage of a variety

of services.” In re White, 303 Mich App 701, 710; 846 NW2d 61, 66 (2014) (quotation marks

and citation omitted).

As the trial court highlighted, these proceedings began because respondent was struggling

with drug abuse, criminal activity, and an inability to provide a proper home for the minor. The

minor was taken into care after respondent, who had previously tested positive for cocaine and

morphine, was arrested pursuant to an outstanding warrant. The minor was in the car respondent

was driving at the time of his arrest. At the time of the arrest, drug paraphernalia and alcohol

were found in the minor’s diaper bag. Respondent missed several hearings during the

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proceedings either because he was in jail or because he was attempting to elude the police. He

failed to keep in contact with DHS and he overall appeared uninterested in resolving the

troublesome aspects of his life. Although he attended Tri-Cap, a halfway house, he was

discharged from that program twice. He also tested positive for cocaine while at Tri-Cap, and

failed to submit to further drug tests. At the time of the termination hearing, respondent was in

jail because he absconded from Tri-Cap a second time. Respondent also admitted to avoiding

visitation with his son because he was eluding capture.

In light of the foregoing, the trial court was not clearly erroneous to conclude that in the

18 months of these proceedings, the conditions that led to the adjudication remained 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).

Respondent, however, contends that the trial court erred in ordering termination because,

pursuant to In re Mason, 486 Mich 142, 160; 782 NW2d 747 (2010), “[t]he mere present

inability to personally care for one’s children as a result of incarceration does not constitute

grounds for termination.” Yet, the trial court did not rely on respondent’s present inability to

personally care for the minor. Rather, significant evidence of respondent’s lack of progress was

presented, irrespective of his current incarceration. He showed no sustained progress in

committing to a drug free lifestyle. In fact, he tested positive for cocaine at the half-way house,

and then declined further drug screens. His legal troubles also persisted, as he either was

unwilling or unable to comply with law. He continually chose to violate the terms of his

probation. He showed no effort to prioritize the needs of the minor, as he repeatedly absconded

rather than engage in services or visit the minor. As the trial court found, because of

respondent’s choices, he “made himself unavailable to his child.” Respondent had over 18

months to demonstrate that he was committed to rectifying the conditions that led to the

adjudication and prioritizing the needs of his child. That he utterly failed to make any progress

toward this goal supports the trial court’s finding.3

We also are mindful of the minor’s age, which was three years old at the beginning of

these proceedings and almost five years old at the time of the termination hearing. Given his

young age and needs, we find no clear error in the trial court’s finding that there is no reasonable

likelihood that these conditions will be rectified within a reasonable time. MCL

712A.19b(3)(c)(i). See Matter of Dahms, 187 Mich App 644, 647; 468 NW2d 315 (1991) (MCL

712A.19b(3)(c)(i) “indicates to us that the Legislature did not intend that children be left

indefinitely in foster care, but rather that parental rights be terminated if the conditions leading to

the proceedings could not be rectified within a reasonable time.”).

Because “[i]t is only necessary for the DHS to establish by clear and convincing evidence

the existence of one statutory ground to support the order for termination of parental rights[,]” In

re Frey, 297 Mich App 242, 244; 824 NW2d 569 (2012), we need not consider MCL

712A.19b(3)(g).

3

Further, although respondent testified that he was confident he would have no trouble finding a

job after jail, it does not appear that he had obtained such a position.

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III. BEST INTERESTS

A. STANDARD OF REVIEW

Respondent next challenges the trial court’s best-interests findings. “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). “We review for clear error . . . the court’s decision regarding the

child’s best interest under MCL 712A.19b(5).” Id. (quotation marks and citation omitted). “A

trial court’s decision 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. at 41 (quotation marks, citation, and brackets omitted).

B. ANALYSIS

MCL 712A.19b(5) provides that “[i]f 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 deciding whether termination 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[.]” In re Olive/Metts Minors, 297 Mich App at 41-42

(internal citations omitted). Furthermore, “once a statutory ground is established, a parent’s

interest in the care and custody of his or her child yields to the state’s interest in the protection of

the child.” In re Foster, 285 Mich App 630, 635; 776 NW2d 415 (2009).

Respondent first contends that the trial court erred in its best-interests analysis because he

had a strong bond with the minor. However, that is but one factor for the trial court to consider

in its best-interests analysis. See In re Olive/Metts Minors, 297 Mich App at 41-42. There was

significant evidence that respondent placed the minor in danger through exposing him to drug

use and criminal activity, which remained unresolved after 18 months of proceedings.

Respondent also contends that the trial court erred because, pursuant to In re Mason, 486 Mich at

164, the minor’s placement with a paternal relative during respondent’s incarceration weighed

against termination. Respondent also contends that his plan was to place the child with the

paternal grandmother, and a guardianship was preferable to termination.

However, unlike In re Mason, 486 Mich at 146-148, this is not a case where respondent

was in jail for an unrelated event and made provisions to leave the minor with a person he

perceived as a suitable caregiver. Rather, respondent and the mother—despite their extensive

drug use—were purporting to care for the child despite the dangers such a situation posed.

Respondent was arrested with the minor in the car, and drug paraphernalia and alcohol were

located in the minor’s diaper bag. It was not until petitioner intervened that the child was

removed and placed with a more suitable caregiver. As the trial court found, even after a year of

these proceedings, respondent was purportedly working toward reunification, not a guardianship.

It was not until the termination hearing was looming that respondent suddenly claimed that

guardianship was his plan for the minor.

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Significantly, the trial court did consider the fact that the minor was placed with a

relative, which weighs against termination, and the court even referenced In re Olive/Metts. See

In re Mason, 486 Mich at 164; In re Olive/Metts, 297 Mich App at 43. After considering the

minor’s placement, the court ultimately concluded that termination still remained the best option.

The court noted its concerns regarding the family conflicts and that the parental grandmother

may not qualify for a guardianship subsidy. It also divulged its concern that, without the finality

of termination, respondent might again obtain custody of the minor if something happened to the

guardian. Respondent displayed an unwillingness to behave within the confines of the law. He

repeatedly absconded from probation and attempted to evade capture. The court did not clearly

err in finding that exposure to such a chaotic environment was not in the minor’s best interest.

The court properly found that the minor was in need of a stable environment, absent the turmoil

of respondent’s unpredictable and potentially dangerous presence. As the court explained,

respondent has “shown too many times that while [he] may have good intentions, the good

intentions are all [he has.]”

The minor was in need of permanency and finality, which was best achieved through

termination in this case. In re Olive/Metts, 297 Mich App at 41-42; In re Frey, 297 Mich App at

249 (“[t]he child required a permanent, safe, and stable home, which” respondent was not

“capable of providing.”). See also In re VanDalen, 293 Mich App at 141 (“The evidence clearly

supported the trial court’s finding that termination was in the child[’s] best interests” because

“[c]ompelling evidence indicated that the children would not be safe in respondent[’s]

custody[.]”). The trial court properly focused on what was in the best interests of the minor. In

re Foster, 285 Mich App at 635.

IV. CONCLUSION

The trial court properly terminated respondent’s parental rights pursuant to MCL

712A.19b(3)(c)(i) and found that termination was in the minor’s best interests. We affirm.

/s/ Stephen L. Borrello

/s/ Amy Ronayne Krause

/s/ Michael J. Riordan

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