in Re Hoffman Minors

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re HOFFMAN, Minors. August 18, 2015

No. 325751

Montcalm Circuit Court

Family Division

LC No. 2013-000628-NA

Before: TALBOT, C.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

Respondent mother appeals as of right the January 14, 2015, order terminating her

parental rights to the minor children under MCL 712A.19b(3)(c)(i) (conditions that led to the

adjudication continue to exist), (c)(ii) (other conditions to cause the child to come within the

court’s jurisdiction continue to exist), and (j) (children will be harmed if returned to parent). We

affirm.

Respondent first argues that the trial court erred in finding statutory grounds for the

termination of her parental rights. To terminate parental rights, a trial court must find the

existence of a statutory ground for termination in MCL 712A.19b has been met by clear and

convincing evidence. In re McIntyre, 192 Mich App 47, 50; 480 NW2d 293 (1991). Only one

statutory ground for termination must be established. In re Trejo Minors, 462 Mich 341, 360;

612 NW2d 407 (2000). A trial court’s factual findings in terminating parental rights, including a

finding that a ground for termination has been established, are reviewed for clear error. MCR

3.977(K); Trejo Minors, 462 Mich at 356-357. A finding is clearly erroneous if the reviewing

court is left with a definite and firm conviction that a mistake has been made. In re Mason, 486

Mich 142, 152; 782 NW2d 747 (2010).

The trial court found statutory grounds for terminating respondent’s parental rights under

MCL 712A.19b(3)(c)(i), (c)(ii), and (j), which provide:

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:

***

(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:

-1-

(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.

(ii) Other conditions exist that cause the child to come within the court’s

jurisdiction, the parent has received recommendations to rectify those conditions,

the conditions have not been rectified by the parent after the parent has received

notice and a hearing and has been given a reasonable opportunity to rectify the

conditions, and there is no reasonable likelihood that the conditions will be

rectified 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.

Respondent’s children were removed from her care on August 28, 2013, due to

allegations that respondent and the children’s father had a history of substance abuse and

improper supervision, a domestic violence incident was reported in the home in August 2013,

respondent’s six-year-old child tested positive for cocaine on August 28, 2013, CPS had been

involved with the family in 2012 and 2013, and prior referrals for counseling and substance

abuse meetings had not been followed by either parent. After respondent admitted to some of

the allegations in the petition and the trial court obtained jurisdiction over the children, a parent

agency agreement was put into place. Respondent underwent a psychological evaluation and

substance abuse assessment and was required to attend substance abuse and individual

counseling, attend parenting classes, and obtain and maintain proper housing, among other

things.

At the termination hearing, the trial court indicated that substance abuse, domestic

violence, parenting skills, and housing were conditions under MCL 712A.19b(3)(c) that

respondent failed to rectify. The trial court found a statutory ground for termination under MCL

712A.19b(3)(j) based on the same conditions.

Regarding respondent’s substance abuse, the trial court found that respondent made

progress regarding her substance abuse, but that the condition was still “unresolved.” In support

of that finding, the trial court cited respondent’s positive drug tests during the proceeding and the

incidents when respondent was intoxicated by alcohol. The trial court thus found that drug use

was still occurring. Holly Wixon, respondent’s therapist from October 2013 through the time of

the January 2015 termination trial, did testify that she and respondent addressed respondent’s

relapses through counseling and she taught respondent how to handle her withdrawal symptoms.

Wixon further testified that as of the time of the termination hearing, respondent continued to

make progress regarding her substance abuse and that respondent’s 10 months of sobriety

regarding drugs before the termination hearing was a good indication of respondent’s long-term

sobriety.

-2-

However, Wixon testified to being a “limited license social worker” with a substance

abuse certificate and the trial court would not qualify her as an expert witness in substance abuse

and mental health counseling due to her not having a full license. That ruling has not been

challenged on appeal. Thus, while Wixon could testify as to her interactions with respondent

and her personal opinions, Wixon’s testimony regarding prognosis cannot be credited as that of

an expert.

Moreover, Wixon also testified that while respondent had good participation “there were

some cancellations and no shows but we typically rescheduled them when we could.” Wixon

further testified that respondent was “very open and honest” with her but also testified that she

was not made aware of an incident that took place in June 2014, where respondent and the

children’s father were found on state land by police, respondent was visibly intoxicated, had

assaulted the children’s father, and was homeless until later and was unsure if it was respondent

that told her of the incident. Wixon also testified that respondent had indicated she had used

cocaine on only one occasion when she was 32 years old. Prior testimony established, however,

that respondent had tested positive for cocaine twice in July of 2013. Wixon further testified that

she thought that the impaired driving incident for which respondent was arrested in July 2014

was a reckless driving incident where she drank alcohol. Wixon thereafter testified that the

incidents concerned her that respondent may be abusing alcohol.

Respondent did make some progress with her marijuana and cocaine abuse. In the 64

attempted drug screens throughout the case, respondent took only 31 of the tests and only 12 of

those came back negative for illegal substances, the vast majority towards the time of the

termination hearing. Those tests do not, however, test for alcohol abuse. The trial court did not

clearly err in finding clear and convincing evidence of a statutory ground for termination under

MCL 712A.19b(3)(c)(i) based on respondent’s substance abuse. MCR 3.977(K); Trejo Minors,

462 Mich at 356-357.

Regarding respondent’s struggles with domestic violence, the trial court found that

respondent continued to have contact with the minor children’s father despite the existence of a

court order preventing contact between them and that respondent failed to complete her domestic

violence counseling. Here, there was evidence that in early 2014, the minor children’s father

harmed respondent by throwing a telephone at her face. On April 22, 2014, the trial court

ordered that respondent have no contact with the minor children’s father. Nevertheless, there

was testimony that respondent had contact with him on June 14, 2014, June 25, 2014, July 30,

2014, and on another occasion after September 24, 2014. Respondent petitioned for a PPO

against the minor children’s father on September 24, 2014, yet still had contact with him on at

least one occasion thereafter. Moreover, while respondent had been discussing and addressing

the domestic violence issue with various counselors throughout the proceedings, she had yet to

complete any domestic violence counseling program at the time of the termination hearing. The

trial court did not err in finding that respondent’s domestic relations were a barrier to her ability

to provide proper care and custody at the time of the termination hearing, or, alternatively, that

respondent would not rectify that barrier within a reasonable time. See JK, 468 Mich at 214.

Thus, the trial court did not clearly err in finding clear and convincing evidence of a statutory

ground for termination under MCL 712A.19b(3)(c)(i) based on respondent’s history of

struggling with her domestic relations. MCR 3.977(K); Trejo Minors, 462 Mich at 356-357.

-3-

In regard to respondent’s parenting skills, the trial court found that there was evidence

that respondent had adequate parenting skills and that she displayed those skills with her

children. Nevertheless, the trial court found that the barrier to reunification regarding

respondent’s parenting skill was not rectified because respondent continued to “jeopardize that

parenting relationship with drug abuse and domestic violence.” As discussed above, there was

strong evidence that respondent’s issue with domestic violence still existed at the time of the

termination hearing, and/or that there was a reasonable likelihood that any lingering issues

respondent continued to have with domestic violence and substance abuse would not be rectified

within a reasonable amount of time. On this record, we find that the trial court did not clearly err

in finding clear and convincing evidence of a statutory ground for termination under MCL

712A.19b(3)(c)(i) based on respondent’s parenting. MCR 3.977(K).

Regarding the trial court’s findings under MCL 712A.19b(3)(j), for the reasons discussed

above, the trial court did not clearly err in finding that there was clear and convincing evidence

of a reasonable likelihood of harm to the minor children if they were returned to respondent

under MCL 712A.19b(3)(j) because of her substance abuse, domestic violence, and parenting.

MCR 3.977(K); Trejo Minors, 462 Mich at 356-357. Based on the above and the circumstances

in this case including the fact that respondent has been offered and received services for these

children since 2012 which have been unsuccessful, the trial court also correctly found that

termination was in the best interests of the children.

Respondent contends that due process issues were not properly observed in this case,

indicating that termination was requested despite her service providers’ beliefs that respondent

complied with and benefitted from services. First, respondent offers no analysis or legal support

for her argument, thus abandoning it. See, e.g. Berger v Berger, 277 Mich App 700, 715; 747

NW2d 336 (2008)(“Where a party fails to cite any supporting legal authority for its position, the

issue is deemed abandoned.”). Second, as indicated above when discussing Wixon’s testimony,

whether respondent’s service provider’s opinions were based upon a mistaken belief in

respondent’s forthrightness and honesty has been called into question.

Affirmed.

/s/ Michael J. Talbot

/s/ Kirsten Frank Kelly

/s/ Deborah A. Servitto

-4-