in Re adair/neal Minors

STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED

In re ADAIR/NEAL, Minors. December 28, 2017

Nos. 337931; 337932

Wayne Circuit Court

Family Division

LC No. 14-517114-NA

Before: MURRAY, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

In these consolidated appeals, respondent-mother M. Adair and respondent-father J. Neal

each appeal as of right from a circuit court order terminating their parental rights to the minor

children pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). We affirm.

I. STATUTORY GROUNDS FOR TERMINATION

Both respondents argue that the circuit court erred in finding that a statutory ground for

termination was established by clear and convincing evidence.

The petitioner bears the burden of proving a statutory ground for termination by clear and

convincing evidence. MCL 712A.19b(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407

(2000). This Court reviews for clear error a circuit court’s decision that a statutory ground for

termination has been proven by clear and convincing evidence. MCR 3.977(K); In re Trejo, 462

Mich at 356-357. A decision qualifies as 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 JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003). Clear

error signifies a decision that strikes this Court as more than just maybe or probably wrong. In

re Trejo, 462 Mich at 356. This Court “give[s] deference to the trial court’s special opportunity

to judge the credibility of the witnesses.” In re HRC, 286 Mich App 444, 459; 781 NW2d 105

(2009).

A. MCL 712A.19b(3)(c)(i)

A circuit court may order termination of parental rights under MCL 712A.19b(3)(c)(i) if

the evidence clearly and convincingly establishes:

(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

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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.

Approximately 31 months had elapsed between the circuit court’s entry of the initial

dispositional order and the termination hearing. In August 2014, respondents admitted the

allegations in the July 2014 amended petition. Respondent-mother admitted that she

inappropriately spanked the children, leaving bruises and welts on their bodies. She admitted

knowing that her physical discipline was wrong, but acknowledged that she had used it for

approximately two years. Moreover, Child Protective Services (CPS) had previously

substantiated six allegations of respondent-mother’s physical abuse of the children between 2008

and 2013. Respondent-father conceded that he had not supported or visited the children between

September 2012 and October 2013. Although he had resumed providing financial support for

the children, he last saw them in July 2012.

In September 2014, the circuit court ordered respondent-mother to complete parenting

classes, attend individual therapy that addressed anger management, undergo a psychological

evaluation, maintain appropriate housing and a suitable income, and regularly attend parenting

times. The court ordered respondent-father to participate in parenting classes, complete

individual therapy, maintain suitable housing, maintain an income appropriate to support the

children, and attend parenting times. The court later ordered respondents and the children to

participate in family therapy.

Clear and convincing evidence established that the conditions leading to the children’s

adjudication in August 2014 continued to exist in March 2017, with no reasonable likelihood of

being rectified within a reasonable time. The testimony of caseworker Dana Brown, case

supervisor Laurie Webber, and respondent-mother indicated that respondent-mother had

completed parenting classes, a parenting assistance program, and a psychological evaluation.

Brown and Webber also agreed that respondent-mother was attending family and individual

therapy, but testified that she had not successfully completed her therapy at the time of the

termination hearing. Webber denied that respondent-mother’s therapist had recommended

reunification with the children. Brown and Webber also testified that respondent-mother failed

to substantiate a suitable income.

Respondent-mother testified that she owned a house in Detroit, but she owed

approximately $3,000 in unpaid real estate taxes on the property. In addition, Brown testified

that when she inspected the house in April 2016, it had electricity and running water only in the

kitchen, there was “dog feces in several of the rooms,” and the home had the “aroma of dog urine

and feces.” The house had also been infested with cockroaches until petitioner paid an

exterminator to treat the infestation. Although Brown had provided respondent-mother with

applications for housing assistance and other offers of housing assistance, she failed to pursue

alternate housing. Webber testified that in March 2017, respondent-mother still lacked housing

suitable for occupancy by the children.

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Brown, Webber, and respondent-mother testified that she and the children shared a strong

bond. But according to Brown and Webber, respondent-mother failed to benefit from the anger

management goal of her individual therapy. Brown testified that respondent-mother often

ignored her oldest daughter during parenting times because the child had denied wanting to live

with respondent-mother. In January and February 2016, respondent-mother became angry

toward Brown, and argued and yelled in the children’s presence.

Brown, Webber, and respondent-father all testified that he had completed parenting

classes. However, Brown and Webber agreed that respondent-father had failed to participate in a

psychological evaluation, lacked housing suitable for the children, and had no verified income

after March 2016. Brown and Webber also agreed that respondent-father had not completed

family or individual therapy.

Respondent-mother disputed much of the testimony. She denied that her house was in

significant disrepair, and claimed that it had electricity and running water throughout. She also

claimed that she had learned in parenting classes not to physically discipline the children. She

stated that she had been employed through a temporary employment agency at a factory since

January 2017. Respondent-mother testified that she attended therapy to address anger

management and other issues until petitioner inexplicably cancelled the counseling, and she

denied that petitioner had ever provided her with services to improve her parenting skills before

2014, or that she had spanked the children with a rope. The circuit court, however, expressly and

repeatedly discredited respondent-mother’s testimony, a credibility assessment to which this

Court defers. In re HRC, 286 Mich App at 459.

The circuit court afforded respondents approximately 31 months in which to demonstrate

improved parenting skills. Respondent-mother made only minimal progress in the areas of

primary concern, namely, her lack of appropriate housing, her longstanding history of physically

abusing the children, and her physical neglect of the children. Respondent-father also made little

to no progress toward maintaining housing, possessing an income sufficient to provide for the

children, or participating in therapy. The children had spent approximately 31 months as

temporary court wards, and urgently needed permanency and stability.

Respondent-mother misrepresents the holding of In re Trejo, 462 Mich at 357-364,

regarding the propriety of termination of parental rights under MCL 712A.19b(3)(c)(i). Contrary

to respondent-mother’s contention, our Supreme Court affirmed an order terminating parental

rights in that case because the respondent failed to acquire appropriate housing or provide a plan

for the children’s custody during the year that the children resided in foster care. In re Trejo, 462

Mich at 357-364. Furthermore, in this case, respondent-mother failed to make significant

progress toward several important components of her treatment plan, despite that she received

approximately 31 months to do so. Specifically, she did not demonstrate progress in family

counseling or individual counseling that included an anger management component in light of

her longstanding physical abuse of the children, she never obtained suitable housing, and she

failed to substantiate an income appropriate for supporting the children.

The evidence also clearly established that there was no reasonable likelihood that

respondents would improve their parenting skills within a reasonable time. A decision regarding

a reasonable time for improvement “appropriately focuse[s] not only on how long it would take

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respondent to improve her parenting skills, but also on how long her . . . children could wait for

this improvement.” In re Dahms, 187 Mich App 644, 648; 468 NW2d 315 (1991); see also In re

LE, 278 Mich App 1, 28; 747 NW2d 883 (2008). Respondents’ lack of progress after more than

31 months demonstrated that they were not reasonably likely to rectify their parenting

deficiencies within a reasonable time.

Accordingly, the circuit court did not clearly err in finding clear and convincing evidence

to terminate respondents’ parental rights pursuant to MCL 712A.19b(3)(c)(i).

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

Under MCL 712A.19b(3)(g), a circuit court can terminate a respondent’s parental rights

“if the court finds, by clear and convincing evidence,” that “[t]he 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.” Abundant evidence established respondents’ failure to properly care for,

protect, and supervise the children, and the unlikelihood that they might within a reasonable time

improve their parenting skills. In re JK, 468 Mich at 213-214.

Clear and convincing evidence showed that respondents failed to properly parent the

children. Respondent-mother admitted that she inappropriately spanked the children, leaving

bruises and welts on their bodies. She admitted knowing that her physical discipline was wrong,

but acknowledged that she had used it for approximately two years. Indeed, CPS had

substantiated six allegations of respondent-mother’s physical abuse of the children between 2008

and 2013. Respondent-father conceded that he failed to support or visit the children between

September 2012 and October 2013. Although he had resumed providing financial support for

the children, he last saw them in July 2012. This evidence supports the circuit court’s

determination that both respondents failed to provide proper care or custody for the children.

Clear and convincing evidence also established that there was no reasonable expectation

that respondents would be able to rectify their parental shortcomings within a reasonable time in

light of the children’s ages. In re LE, 278 Mich App at 28; In re Dahms, 187 Mich App at 648.

As summarized in the discussion regarding the propriety of termination under MCL

712A.19b(3)(c)(i), clear and convincing evidence established that despite the circuit court’s

allowance of approximately 31 months for respondents to participate in parenting classes, family

therapy, and individual therapy, and to maintain appropriate housing and a suitable income,

respondents demonstrated minimal improvement in their abilities to provide for and supervise

the children. In the meantime, the children languished in foster care for more than 31 months

and required permanency and stability.

The circuit court did not clearly err in finding clear and convincing evidence supporting

termination of respondents’ parental rights pursuant to MCL 712A.19b(3)(g).

C. MCL 712A.19b(3)(j)

A circuit court also can terminate parental rights if evidence clearly and convincingly

establishes that “[t]here 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

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712A.19b(3)(j). The record clearly and convincingly establishes that the event precipitating the

child protective proceeding involved respondent-mother’s spanking of the children with a rope,

which left bruising and welts on the children’s bodies. Respondent-mother admittedly knew that

her physical discipline was wrong, but acknowledged that she had used it for approximately two

years, and CPS had previously substantiated six allegations of respondent-mother’s physical

abuse of the children between 2008 and 2013. When the children arrived in foster care in 2014,

respondent-father admitted that he had failed to support or visit the children between September

2012 and October 2013.

Clear and convincing evidence established that for approximately 31 months after the

dispositional order, respondent-mother failed to significantly improve her parenting skills or her

problem with anger management. In addition, both respondents did not possess appropriate

housing, and they both lacked incomes suitable to provide for the children. We detect no clear

error in the circuit court’s conclusion that clear and convincing evidence established a reasonable

likelihood that the children remained at risk of potential emotional or physical harm in

respondents’ care. In re Hudson, 294 Mich App 261, 268; 817 NW2d 115 (2011) (explaining

that the risk of harm to children includes both potential emotional and physical harm).

Respondent-mother’s reliance on In re Boursaw, 239 Mich App 161, 169-178; 607

NW2d 408 (1999), is misplaced. In that case, the trial court terminated the parental rights of a

special needs respondent who had made substantial progress toward completing her treatment

plan, primarily because of the length of time the children had remained in care, approximately 10

months. This Court concluded that termination was premature because the respondent “had

made significant strides toward remedying the problems that had brought this matter to

petitioner's attention.” Id. at 176-177. In this case, respondent-mother was allowed

approximately 31 months to complete a treatment plan, but made little to no progress. She

attended parenting classes and completed a psychological evaluation, but she ignored the

requirement that she participate in family and individual therapy, including anger management

counseling in light of her longstanding physical abuse of the children. She also failed to obtain

suitable housing or a sufficient income to support the children. Unlike the respondent in In re

Boursaw, respondent-mother failed to make substantial progress after 31 months of participation

in her treatment plan.

II. BEST INTERESTS

Both respondents also argue that the circuit court erred in finding that termination of their

parental rights was in the children’s best interests.

Once the petitioner has proven a statutory ground, the circuit court must order

termination if “termination of parental rights is in the child’s best interests.” MCL 712A.19b(5).

Whether termination is in a child’s best interests is determined by a preponderance of the

evidence. In re Gonzales/Martinez, 310 Mich App 426, 434; 871 NW2d 868 (2015). A circuit

court’s decision regarding a child’s best interests is also reviewed for clear error. MCR

3.977(K); In re Trejo, 462 Mich at 356-357.

In In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014), this Court summarized:

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The trial court should weigh all the evidence available to determine the

children’s best interests. To determine whether termination of parental rights is in

a child’s best interests, the court should consider a wide variety of factors that

may include 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. 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. [Citations and quotation marks omitted.]

The circuit court did not clearly err in finding that termination of respondents’ parental

rights served the children’s best interests. The testimony agreed that a loving bond existed

between respondents and the children. Respondents completed parenting classes and regularly

attended parenting times. In light of respondent-mother’s physical abuse of the children in 2014

and the substantiated CPS complaints of her physical abuse dating back to 2005, respondent-

mother’s therapy was to address her anger management problem. But she and respondent-father

failed to complete family or individual therapy, even after multiple referrals by petitioner.

Respondents also demonstrated an inability to provide for the children’s housing or other needs.

Respondents did not possess appropriate housing or an income that would allow them to provide

for the children. The children had spent more than 31 months in foster care, and had strong

needs for finality, permanency, and stability. Furthermore, the children lived in separate foster

homes that were meeting their needs and could provide them with permanent homes. A

preponderance of the evidence supports the circuit court’s finding that termination of

respondents’ parental rights was in the children’s best interests.

Affirmed.

/s/ Christopher M. Murray

/s/ Kirsten Frank Kelly

/s/ Karen M. Fort Hood

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