in Re C M R Kaczkowski Minor

924 N.W.2d 1, 325 Mich. App. 69

Opinion

Per Curiam.

Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child under MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), and (j). Respondent's husband-the child's legal father-voluntarily released his parental rights. He is not a party to this appeal, and he is allegedly not the child's biological father. We affirm.

This case arises, in part, out of the murder of another one of respondent's children. That child was murdered by respondent's husband before the birth of the child in this case. Respondent's husband is incarcerated for the murder. The initial petition recited respondent's prior history with Child Protective Services (CPS), including the death of the other child at the hands of respondent's husband and the fact that respondent had never filed for divorce from her husband despite the fact that he was convicted of murdering respondent's other child. The petition indicated that respondent was currently in a relationship with JK-who was alleged to be the instant child's biological father-despite that he was prohibited from having contact with minors after a prior conviction for child molestation in Oklahoma. The petition also included allegations concerning respondent's poor housing conditions and her mental instability.

Following a hearing, the child was removed from respondent's care and placed in foster care. Respondent was allowed supervised visitation. Respondent's treatment plan, designed so that she could continue to be a parent to her child, required respondent to attend a parenting program, submit to random drug screens, undergo a complete psychological evaluation, and participate in mental health services. She completed the psychological evaluation and the parenting program, had negative drug screens, and began full-time employment and unsupervised visitations with her child.

Shortly thereafter, the guardian ad litem (GAL) filed a petition to suspend respondent's visitation and to terminate respondent's parental rights. The petition alleged that respondent was having continued contact with JK and that, at times, this contact occurred with the child present. At the time respondent and JK met, and throughout at least the initial period of the instant matter, JK was on probation in Oklahoma for committing the offense of lewd molestation 1 against a family member. Respondent denied knowing the truth about the specific crime for which JK was on probation but did know that he was on probation.

We are concerned that we cannot find any order in the record specifically naming JK and explicitly directing respondent to refrain from contact with him, and we are deeply concerned that JK's violation of the orders imposed on him may have been held against respondent. However, the evidence shows that respondent was aware that she was not supposed to have contact with him nor allow him around her child. The relevant factual dispute is whether she actually did. Respondent had sufficient income, suitable housing, a lawful lifestyle, and conducted herself properly with the child. There were concerns were that respondent lacked self-control and emotional stability, that she had an alleged history of being in the presence of unsafe individuals, and that she had not benefited from counseling despite mostly participating in the services offered.

"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 N.W.2d 412 (2011). We review for clear error a trial court's ruling that a statutory ground for termination has been proved by clear and convincing evidence. In re Hudson , 294 Mich. App. 261 , 264, 817 N.W.2d 115 (2011). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." Id.

The trial court found that grounds for terminating respondent's parental rights were established under MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), and (j), which authorize termination of parental rights under the following circumstances:

(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.

( 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.

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(g) The 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.

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(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.

The trial court cited § 19b(3)(c)( ii ) as a reason for termination, but neither the trial court nor the parties have identified what "other conditions" supported termination. We therefore cannot find a basis for termination on that ground to be established. However, under the circumstances of this case, either the error is harmless or the trial court simply misspoke. In re Powers Minors , 244 Mich. App. 111 , 118, 624 N.W.2d 472 (2000).

Many of the above concerns have been corrected. Respondent's husband is incarcerated, and he relinquished his parental rights. Therefore, we fail to perceive the threat he poses to the child. It appears that respondent's housing is stable, even if it is not perfect; her income is sufficient; and her employment has been reasonably steady despite setbacks outside her control. Respondent also completed parenting classes, and she completed two psychological evaluations. There was no dispute that respondent and the child were bonded to each other, and for the most part, respondent appeared to interact appropriately with the child. Furthermore, there was some indication in the record that JK's violation of the orders imposed upon him may have been held against respondent, which would be contrary to law.

It is absolutely impermissible for any person to be held responsible for someone else's violation of an order.

In other words, a no-contact order issued against JK to have no contact with respondent is an order against JK and only JK. It is simply impossible for respondent to violate a no-contact order issued against JK.

Nevertheless, the concern with respondent's ongoing relationship with JK is an entirely appropriate concern. The record is replete with indications that such an order was actually communicated to respondent on many occasions and that she comprehended it. There are numerous references to respondent's having been told multiple times by the court, the agency, and the GAL that neither she nor her child were to associate with JK. While respondent may not be faulted for other individuals' violations of orders against them, her own violations of an order against her are highly significant.

Additionally, there was concern that despite participating in services, respondent did not benefit from those services, or at least did not benefit sufficiently. Respondent's therapist testified that she continued to lack insight and that she was unable or unwilling to take responsibility for her actions. The therapist also testified that respondent had shown an increase in her rage and an inability to control herself. The therapist expressed concern about respondent's continued contact with JK and opined that respondent's continued poor decisions in choosing relationships with abusive men presented a risk to the child's safety. Respondent's caseworker expressed these same concerns and noted that respondent had obtained a second psychological evaluation, which indicated that she was likely to have problems with anger management, impulsiveness, and acting out.

Although the trial court did not specifically make this finding, we agree with the GAL's argument that the credibility of the witnesses was critical to the trial court's findings. We are required to defer to any such credibility assessments. MCR 2.613(C) ; McGonegal v. McGonegal , 46 Mich. 66 , 67, 8 N.W. 724 (1881). Despite respondent's denials, substantial evidence was presented that respondent had continued to voluntarily associate with JK and had allowed the child to be around him. She continued to remain in contact with JK, contrary to court orders and despite repeated reminders that neither she nor the child was allowed to have any contact with him. The trial court was entitled to give credence to the testimony of respondent's therapist and caseworker. In combination, we cannot find clear error in the trial court's findings that the gravamen of the conditions that led to the adjudication had not been rectified and would not be rectified within a reasonable time. Therefore, the trial court did not clearly err by finding that the evidence supported termination of respondent's parental rights under § 19b(3)(c)( i ).

The evidence also supports the trial court's reliance on § 19b(3)(g) and (j) as additional grounds for termination. "A parent's failure to participate in and benefit from a service plan is evidence that the parent will not be able to provide a child proper care and custody."

In re White , 303 Mich. App. 701 , 710, 846 N.W.2d 61 (2014). "Similarly, a parent's failure to comply with the terms and conditions of his or her service plan is evidence that the child will be harmed if returned to the parent's home." Id. at 711, 846 N.W.2d 61 . Respondent's continued voluntary contact with JK despite being ordered to refrain from contact and after being made aware of the full extent of JK's criminal history, supports a finding that she has not benefited from her service plan. Consequently, a finding that respondent was failing to take adequate precautions to keep the child safe from JK also supports a conclusion that there is a reasonable likelihood, based on respondent's conduct or capacity, that the child will be harmed if returned to respondent's home. The testimony indicating that respondent has continued mental health issues, including anger management issues, and that she refuses to consider psychotropic medications as an option for achieving emotional stability, further supports the trial court's findings that grounds for termination were established under § 19b(3)(g) and (j).

Respondent also argues that the trial court erred by finding that termination of her parental rights was in the child's best interests. "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." MCL 712A.19b(5). Whether termination of parental rights is in a child's best interests is determined by a preponderance of the evidence. In re Moss , 301 Mich. App. 76 , 83, 836 N.W.2d 182 (2013). Factors to be considered 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." Id . at 41-42, 823 N.W.2d 144 (citations omitted). A court may also consider whether it is likely "that the child could be returned to her parents' home within the foreseeable future, if at all." In re Frey , 297 Mich. App. 242 , 249, 824 N.W.2d 569 (2012).

Although respondent loves her child, the trial court did not clearly err by finding that termination of respondent's parental rights was in the child's best interests. At the time of the termination hearing, the child had been in foster care for approximately 2½ years. Respondent had made little, if any, progress in addressing the main reasons that the court took jurisdiction over the child. Respondent's therapist opined that it was highly unlikely that respondent would ever be emotionally or psychologically stable enough to provide a safe environment for the child. In contrast, the child was doing well in foster care, and her foster parents were willing to adopt her. The caseworker testified that the child was fully adjusted to her foster home and had bonded with her foster siblings. The caseworker also stated that termination would provide the child with the permanency she needed, especially considering that respondent would not be able to improve her deficient parenting skills within a reasonable period of time. The caseworker had explored alternatives to termination, such as a guardianship, but no one else had come forward, and the foster parents were not interested in that option. The evidence supports the trial court's determination that termination of respondent's parental rights was in the child's best interests.

Affirmed.

MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ., concurred.

1 We presume this to be a violation of Okla. Stat. Ann., tit. 21, § 1123, a felony.