IN RE BROWN

No. 334642.

In re A. A.-J. BROWN, Minor.

Court of Appeals of Michigan.


Attorney(s) appearing for the Case

FREDERICK D. JOHNSON, JR. , for Appellee.

CHARLES F. JUSTIAN , for DEPARTMENT OF HEALTH AND HUMAN SERVICES, Petitioner-Appellee.

MICHAEL G. WALSH , for Respondent-Appellant.

Before: FORT HOOD, P.J., and JANSEN and HOEKSTRA, JJ.


UNPUBLISHED

PER CURIAM.

Respondent appeals as of right the trial court's order terminating his parental rights to the minor child, AAJB, pursuant to MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist) and (g) (failure to provide proper care and custody). We affirm.

Respondent first argues that the trial court's order terminating his parental rights ought to be reversed because the adjudication pertaining to respondent where the trial court acquired jurisdiction over AAJB did not take place until November 2015. Specifically, respondent contends that his due process rights were violated as a result. We disagree.

As an initial matter, we observe that respondent did not raise his constitutional challenge in the trial court for the trial court's consideration. "We review unpreserved claims of constitutional error under a plain-error analysis." In re VanDalen, 293 Mich.App. 120, 135; 809 N.W.2d 412 (2011) (citation omitted). This Court set forth the requirements to avoid forfeiture of an error under the plain error rule in In re VanDalen, stating, in pertinent part, as follows:

To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. [Id. at 135 (citation and quotation marks omitted).]

"Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich.App. 1, 9; 761 N.W.2d 253 (2008) (citation omitted).

"In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014).

Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase. Once the court has jurisdiction, it determines during the dispositional phase what course of action will ensure the child's safety and well-being. [Id. (citations omitted).]

We acknowledge that in In re Sanders, the Michigan Supreme Court held that "due process requires a specific adjudication of a parent's unfitness before the state can infringe the constitutionally protected parent-child relationship." Id. at 422. In so ruling, the Michigan Supreme Court concluded that the one-parent doctrine violated the due process rights of unadjudicated parents where, in circumstances in which one parent was adjudicated unfit, the trial court could enter dispositional orders that impacted the parental rights of both parents. Id. at 407, 415, 420 n 17.

Even if we were to accept respondent's assertion that his due process rights were violated when AAJB was removed from his care and custody without an adjudication of his parental fitness, we note the very important fact that these proceedings were adjudicated with respect to respondent during a hearing held on November 4, 2015, and the trial court entered its order of adjudication with respect to respondent on November 6, 2015. At the November 4, 2015 adjudication hearing, respondent pleaded no contest to the allegations contained in an amended petition and does not contest that adjudication of his parental fitness on appeal. Notably, counsel for respondent in the lower court proceedings informed the trial court during the November 4, 2015 hearing that respondent had agreed to plead no contest to the allegations in the amended petition, and that the parties agreed that such action would "basically take care of the In Re Sanders and the jurisdictional issue."1 Respondent concedes that this occurred in his brief on appeal. This Court has recognized that it is improper for a respondent in termination proceedings to assign as error on appeal something that he determined proper in the trial court, as doing so would allow a party to harbor error as an appellate parachute. In re Hudson, 294 Mich.App. 261, 264; 817 N.W.2d 115 (2011).

In any event, after an order of adjudication was entered with respect to respondent, termination of his parental rights did not occur until nine months later on August 12, 2016. During those nine months, the record confirms that respondent could not maintain employment for any significant period of time and had challenges providing a stable environment for AAJB where he continually changed employment. Respondent also struggled with being able to properly budget his finances, to the extent that it impacted his ability to pay his rent and utility bills. As we will discuss in more detail later in this opinion, respondent did not participate in random drug screenings scheduled by petitioner as part of his case service plan. Specifically, during the entire nine months that petitioner provided drug testing services, respondent did not submit enough random samples for petitioner to render an informed opinion regarding whether respondent had a substance abuse problem. The only progress that respondent made on his case service plan during the nine months that elapsed between his adjudication and the termination of his parental rights was that he obtained housing with a family member. However, respondent admitted that this housing situation was not permanent and that he planned to move. Accordingly, under these facts, we are not persuaded that any delay on the part of the trial court in holding an adjudication hearing for respondent affected the outcome of the lower court proceedings.2

Respondent next argues that the trial court clearly erred by finding that statutory grounds existed warranting termination of his parental rights. "To terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been established." In re Moss, 301 Mich.App. 76, 80; 836 N.W.2d 182 (2013) (citation omitted). This Court "review[s] for clear error a trial court's finding of whether a statutory ground for termination has been proven by clear and convincing evidence." Id. (Citations omitted). "A trial court's decision is clearly erroneous `[i]f 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 Olive/Metts, 297 Mich.App. 35, 41; 823 N.W.2d 144 (2012), quoting In re Miller, 433 Mich. 331, 337; 445 N.W.2d 161 (1989) (alteration in original).

The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i) and (g). Under MCL 712A.19b(3)(c)(i), a trial court may terminate parental rights if it finds, by clear and convincing evidence, that "182 or more days have elapsed since the issuance of an initial dispositional order," and "[t]he 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 Court has previously held that termination of parental rights was proper pursuant to MCL 712A.19b(3)(c)(i) where "the totality of the evidence amply support[ed] that [the respondent] had not accomplished any meaningful change in the conditions" that led to adjudication. In re Williams, 286 Mich.App. 253, 272; 779 N.W.2d 286 (2009).

The conditions that initially led to respondent's adjudication were respondent's unstable housing, instances of respondent physically abusing another minor child, respondent's involvement in domestic violence incidents with AAJB's mother, and respondent's admitted abuse of controlled substances. At the time of the termination of his parental rights, the trial court found that termination was proper pursuant to MCL 712A.19b(3)(c)(i) because (1) respondent failed to participate in random drug screens over an extended period of time, leaving the trial court without important information with respect to his substance abuse issues and (2) respondent failed to maintain long-term employment at any point during the proceedings. Our review of the record confirms that the trial court did not clearly err in its determination that termination of respondent's parental rights was necessary pursuant to MCL 712A.19b(3)(c)(i).

The adjudication hearing was held November 4, 2015. At that time, respondent pleaded no contest to the allegation in the amended petition for jurisdiction alleging that he had taken some of the methadone prescribed to the mother of AAJB. Petitioner scheduled random drug screenings for respondent to ensure that respondent was only using controlled substances as prescribed. However, at the April 6, 2016 review hearing, the trial court noted that respondent had missed multiple drug screens in February and March of 2016. Additionally, at the termination hearing, respondent's caseworker testified that respondent did not attend a single scheduled drug screening between December 9, 2015, and June 3, 2016. Respondent's caseworker also stated that the two drug screens respondent did provide in June 2016 were not on days that random drug screenings were scheduled.

We acknowledge that respondent testified during the termination hearing that he attempted to comply with the random drug screens, but that on multiple occasions he was unable to do so because of employment obligations or because the screening facility was closed when he arrived. On appeal, respondent also argues that his parenting time with AAJB and his counseling appointments interfered with his compliance with random drug screening. However, as the trial court noted, it is telling that respondent did not contact his caseworker or undertake efforts to work with the caseworker to ensure that screenings were conducted as required. Moreover, as the trial court emphasized, respondent went six months without a single screening. Where respondent did not comply with required drug screenings, "the totality of the evidence" supports the trial court's reasoned conclusion that respondent "had not accomplished any meaningful change" in a condition that led to his adjudication. In re Williams, 286 Mich App at 272.

The record further supports that respondent would not be able to rectify this issue within a reasonable time. See MCL 712A.19b(3)(c)(i). For six months between December 9, 2015, and June 3, 2016, respondent simply did not attend a single drug screening. While respondent did provide samples for drug screenings twice in June 2016, he continued to miss screenings in the weeks leading up to the termination hearing. Given respondent's lack of commitment to participating in these drug screens throughout the entire lower court proceedings, the record supports the trial court's finding that there was no reasonable likelihood that respondent would be able to rectify his substance abuse issue within a reasonable time. Because termination was proper under MCL 712.19b(3)(c)(i), we need not address the trial court's additional ground for termination. In re HRC, 286 Mich.App. 444, 461; 781 N.W.2d 105 (2009) ("Having concluded that at least one ground for termination existed, we need not consider the additional grounds upon which the trial court based its decision.").3

"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, 297 Mich App at 40 (citations omitted). "[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 at 90 (footnote omitted). We review for clear error the trial court's determination regarding AAJB's best interests. In re White, 303 Mich.App. 701, 713; 846 N.W.2d 61 (2014).

With respect to the trial court's determination concerning the child's best-interests, the focus is properly placed on the child, as opposed to the parent. In re Schadler, 315 Mich.App. 406, 411; 890 N.W.2d 676 (2016). In rendering the best-interest determination, the trial court may consider such factors as:

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, 297 Mich App at 41-42 (citations omitted).]

Other relevant considerations include "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 at 714 (footnote and citations omitted). The trial court may also consider the length of time the child was in foster care or placed with relatives, and the likelihood of the child being returned home. In re Frey, 297 Mich.App. 242, 248-249; 824 N.W.2d 569 (2012).

The record supports the trial court's finding that termination was in AAJB's best interests. AAJB had spent a significant amount of time being shuttled between family placements and a foster care family. When respondent's rights were terminated, AAJB was residing in her foster home, which afforded her stability and permanence that respondent was unable to offer.4 Moreover, AAJB was closely bonded with her foster parents and sibling. Conversely, a review of the record confirms that respondent struggled with providing a stable environment for AAJB. Respondent had not had stable employment during the nine months of the lower court proceedings and admitted to the trial court that he viewed his current housing situation with his aunt as temporary. While respondent challenges the trial court's ruling, arguing that the trial court ought to have considered relative placements for AAJB, the record is clear that multiple relative placements were considered and were ultimately unsuccessful and not in AAJB's best interests. Moreover, as noted above, respondent continually failed to comply with scheduled drug screenings. Respondent's lack of commitment to this aspect of his case service plan supported the trial court's determination that termination was in the child's best interests. See In re White, 303 Mich App at 714 (recognizing that failure to comply with a case service plan is a factor properly weighed in determining the child's best interests). Under these circumstances, the trial court did not clearly err in concluding that termination of respondent's parental rights was in the best interests of the AAJB.5

Affirmed.

FootNotes


1. To the extent that respondent contends that the trial court ought to have dismissed the proceedings when petitioner raised the issue that respondent had not been adjudicated, we note that respondent did not request such action during a review hearing on August 27, 2015.
2. In his brief on appeal, respondent appears to suggest that any error relating to his adjudication also impacted the ability to have AAJB placed with relatives, where the trial court denied his motion seeking AAJB's placement with relatives after AAJB's mother expressed her preference that AAJB remain in foster care. However, a review of the trial court's ruling from the bench during the October 23, 2015 motion hearing confirms that AAJB's mother's stated preference played very little role in the trial court's determination, and that the trial court decided to deny respondent's motion to preserve continuity and stability in AAJB's life.
3. To the extent that respondent argues, in a cursory fashion in his brief on appeal, that his liberty interest in the custody and control of his child was violated, we observe that where "at least one [statutory] ground for termination is established . . . the liberty interest of the parent no longer includes the right to custody and control of the children." In re Trejo, 462 Mich. 341, 355; 612 N.W.2d 407 (2000), superseded on other grounds as stated in In re Moss, 301 Mich App at 83. Respondent's perfunctory argument that AAJB's due process right to her "family life" has been violated, In re Clausen, 442 Mich. 648, 686; 502 N.W.2d 649 (1993), is also unavailing, given that the trial court concluded, by terminating respondent's parental rights, that respondent is not a fit parent. See In re Anjoski, 283 Mich.App. 41, 61; 770 N.W.2d 1 (2009) (recognizing that the parent-child relationship may be interfered with "where a parent is unfit[.]")
4. We acknowledge that the record reflected that respondent was also bonded with AAJB and participated appropriately in supervised parenting time with her. However, the record confirms that beginning in May of 2016, AAJB, through her behavior and words, expressed reluctance and resistance to visiting with respondent. There are also very serious allegations of physical abuse by respondent against a three-year-old child in a Children's Protective Services (CPS) investigation report that was admitted as an exhibit during the November 4, 2015 hearing. The exhibit was admitted with respondent's agreement to provide the factual basis for his no contest plea to the amended petition seeking jurisdiction of AAJB.
5. In a cursory argument not properly presented in respondent's statement of the questions presented on appeal, respondent alleges in his brief on appeal that the trial court was biased against him and ought to have recused itself, where the trial court, during an August 27, 2015 review hearing, acknowledged on the record that it knew AAJB's foster parents. The trial court made it clear that the relationship was a distant one. It was evident that the trial court disclosed this information to preserve the integrity of the lower court proceedings and to keep all parties fully informed. We have considered respondent's allegation, and note that there is nothing in the record to suggest that the trial court was in any way actually biased or prejudiced against him. MCR 2.003(C)(1)(a); Cain v Dep't of Corrections, 451 Mich. 470, 494-495; 548 N.W.2d 210 (1996).

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