Michigan Cases May 06, 2021: In re Collum

Case Description

If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports .

UNPUBLISHED

Jackson Circuit Court Family Division
LC No. 18-001305-NA

Before: JANSEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

PER CURIAM.

Respondent-mother appeals as of right the trial court's order terminating her parental rights to her two sons, RC and CC, under MCL 712A.19b(3)(c)( i ) (conditions that led to adjudication continue to exist) and MCL 712A.19b(3)(j) (reasonable likelihood of harm to child). The children's legal and biological fathers either relinquished their rights or had their rights terminated, and they are not at issue in this appeal. We affirm.

On May 21, 2018, petitioner, the Department of Health and Human Services ("DHHS"), filed a petition ("petition") requesting temporary jurisdiction over RC and CC and their removal from the care of respondent. The petition alleged that, at the time the petition was filed, respondent was homeless and residing at a homeless shelter with RC and CC. The petition also alleged that respondent had tested positive for marijuana during one of her pregnancies and at the time of her newborn's birth. The petition further alleged: (1) respondent's home in 2012 was allegedly "filthy," "extremely cluttered," "messy," and an "unfit" place for anyone to live in; (2) respondent had tested positive for methamphetamines and cannabinoid during her pregnancy with CC; (3) there was a video recording of respondent hitting RC in the face with a "closed fist," and several staff members and residents at the homeless shelter had complained about respondent hitting RC and CC during bedtime; (4) one of respondent's boyfriends, William Mosher, was a registered sex offender as a result of criminal sexual conduct and was noncompliant at the time the petition was

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filed; (5) CC's diaper was once reportedly "extremely soiled" and looked like it had not been changed for a couple of days; (6) a doctor had reported that CC had a "ruptured ear drum"; (7) RC told Child Protective Services ("CPS") that respondent had "smacked him on the mouth," and he did not like Mosher because Mosher "smacks him on the face"; and (8) respondent was arrested in 2018 on an outstanding warrant in Hillsdale County. Respondent ultimately pleaded no contest to the allegations in the petition.

Samantha Freiburger, a DHHS worker, recommended that respondent participate in parenting classes, participate in a psychological evaluation and follow the recommendations, obtain a legal source of income, obtain appropriate housing, and participate in a medical examination and follow up with any recommendations. The trial court ordered that respondent comply with, and benefit from, the aforementioned services. The trial court also ordered that RC and CC remain under the care and supervision of DHHS and allowed respondent supervised parenting time. The trial court also entered an order of disposition requiring respondent to comply with, and benefit from, the Case Service Plan ("CSP"). The CSP mandated that respondent participate in parenting classes, participate in a psychological evaluation and follow the recommendations, obtain and maintain a legal source of income and appropriate housing, and participate in a medical examination and engage in any recommended treatment.

On September 4, 2019, petitioner filed a permanent custody petition ("supplemental petition") to terminate respondent's parental rights to RC and CC. The supplemental petition alleged that respondent had failed to rectify the concerns that led to the adjudication and there was no reasonable likelihood that the conditions will be rectified within a reasonable time. Specifically, the petition alleged the following: (1) respondent's psychological evaluation reported that respondent's prognosis is poor; (2) respondent displayed extreme immaturity during her psychological evaluation; (3) respondent never exhibited any empathy for her children or what they were going through; (4) respondent continued to have "bouts of severe irritability and outburst[s] of anger and rage;" (5) respondent's boyfriend was once verbally aggressive toward respondent's caseworker and stated that DHHS was not welcome in his home, where respondent was living; (6) respondent's housing had remained an area of concern; (7) respondent had knowingly dated sex offenders throughout the case and saw no concern with them being around her children; and (8) respondent's hygiene had remained an area of concern throughout the case.

The trial court held an evidentiary hearing, at which testimony established that respondent had successfully completed parenting classes, had obtained employment at McDonald's and maintained that employment for several months, had obtained suitable housing, and had completed a psychological evaluation with Dr. Shannon Lowder. However, Freiburger remained concerned, because Lowder's report concluded that respondent had an adjustment disorder with anxiety and depression, and a personality disorder with mixed features of paranoid and borderline features. Lowder's report further concluded that the prognosis is poor. Furthermore, respondent worked a night shift, leaving RC and CC without care and supervision while she was at work; respondent lacked a support system, so RC and CC would still be without supervision even if she worked a different schedule; and respondent's boyfriend "Gator" was threatening to respondent and to the children. Although "Gator" was not a sex offender, respondent had a history of dating sex offenders. Moreover, it had taken RC 1½ years to function as a normal child. Accordingly, Freiburger opined that respondent had failed to rectify the concerns that led to the adjudication, there was no reasonable likelihood that the conditions will be rectified within a reasonable time,

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and termination of respondent's parental rights was in RC's and CC's best interests. The trial court found termination unwarranted at that time, because Lowder's report made no recommendations for respondent to follow, and its poor prognosis was 16 months old. Accordingly, the trial court ordered a new psychological evaluation for respondent with different psychologists.

Almost a year later, on October 21, 2020, the trial court held another evidentiary hearing regarding the supplemental petition to terminate respondent's parental rights. Lowder testified about the evaluation he had completed in August 2018, explaining that he diagnosed respondent with cannabis use disorder, adjustment disorder with anxiety and depression, and a personality disorder with mixed features of paranoid and borderline features. Respondent's personality disorder affected the poor decisions she had made, such as dating violent men and marrying someone that she had just met. Moreover, respondent did not show any empathy toward her children and what they were going through as a result of this case. Lowder opined that respondent's "prognosis was very poor." Based on Lowder's findings from the evaluation, including the use of substances, the lack of insight, the chronic homelessness, the abuse and neglect of her children, choosing a partner on the sex offender registry and then denying that he was on the sex offender registry, and the psychopathology and her lack of motivation to make any changes, Lowder opined that respondent was not a good candidate for reunification. However, he admitted he had not seen respondent since that evaluation.

Dr. Thomas Muldary testified that he had completed a psychological evaluation on respondent in January 2020. Muldary testified that he had read Lowder's evaluation and, on that basis, had expected respondent to be uncooperative and belligerent. Instead, respondent was ingratiating, cooperative, and clearly endeavoring to portray herself in a positive light. However, respondent was also clearly falsifying her responses to the point of providing invalid profiles on a number of psychological inventories. Consequently, Muldary could not determine respondent's potential for child abuse. Respondent was extremely defensive, thoughtless, superficial, unempathetic, and dishonest. Respondent denied the physical abuse allegations despite the video evidence, and she denied any problems with experiencing or regulating anger. Muldary opined that respondent did not display the kind of awareness, empathy, and problem-solving ability he would expect of someone who completed a parenting class; he recommended further parenting instruction but doubted it would help her. In contrast, Muldary disputed that respondent was intellectually disabled; rather, he opined she was at the low end of average but suffered from a learning disability. Muldary observed that respondent had a history of relational and residential instability, transience, and homelessness. Moreover, it appeared that she was "socially isolative" and had a very limited social support system. These factors, Muldary concluded, "raise[d] some concerns about [respondent] and about her ability to provide a safe and nurturing home environment for her children while managing . . . a normal range of parenting responsibilities."

Elisabeth Smith testified that she had also performed a psychological assessment on respondent in January 2020. Respondent's performance indicated that she was not able to complete anything on her own—i.e., she was not self-sufficient. Smith opined that respondent should not be considered a candidate for reunification, because, Smith reasoned, respondent continued to make poor choices (i.e., substance abuse and residing with dangerous individuals) and did not consider how those poor choices were affecting her children. Smith further observed

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that respondent appeared to find her children disappointing and unsatisfying, which would likely be troubling for the children.

Bailey Roberts, a DHHS worker, testified that he had taken over from a predecessor caseworker in January 2020, and he initially had great faith in respondent and believed he could turn the case around. However, despite respondent's ostensibly successful completion of parenting classes twice, one of them being in-home instruction, respondent did not appear to benefit from those classes. Roberts once witnessed respondent yell at RC, and it was reported that respondent did not take responsibility for the reasons that RC and CC entered into care or why they had remained in care. Respondent obtained appropriate housing in October 2019; however, respondent also had an extensive history of dating and bringing home sex offenders. Respondent was unwilling to be alone, and she continued to depend on "Gator" for transportation despite refusing bus passes offered by the agency. Moreover, respondent still frequently struggled with anger management, particularly toward RC and CC's foster parents. For example, respondent had shown up at DHHS on several occasions "shaking with anger about the foster parents or alleging that they have a special relationship with the visitation coach. She [got] very irritable pretty quickly."

Roberts observed that respondent's hygiene was initially good, but it became apparent that she was merely trying to look like the perfect parent, and the pretense "unraveled after two or three months." He emphasized that respondent's hygiene was not a basis for termination, but rather was "loosely correlated to her mental health needs." During parenting time, respondent was clearly "very aware that she's being watched" and was therefore "very careful about what she says and does," but nevertheless showed no comprehension of the children's needs or awareness of that lack of comprehension. Roberts opined that respondent needed to acquire a basic understanding of parenting skills and empathy for the children, but doing so would require a degree of introspection and ability to face up to one's mistakes that he thought respondent could not achieve in a timely fashion. Accordingly, Roberts believed that termination of respondent's parental rights was in RC's and CC's best interests, because, Roberts reasoned, respondent had not rectified the concerns that led to the adjudication. In the meantime, the children had, despite being initially developmentally delayed, made great improvements in foster care, and the foster parents were willing to adopt them.

Two members of an outpatient mental health network, Shannon Gilson and Jessica Smith, testified on respondent's behalf. Both testified that they met with respondent weekly to biweekly for several months. They opined that respondent never showed any anger or inappropriate behavior, and she made significant progress in dealing with grief and gaining coping skills. Gilson indicated that respondent talked about her children at every session and appeared to love them, and respondent found the termination proceedings distressing. Gilson opined that respondent showed empathy by talking about how she feels "bad for [the children] because they've been in the system and also, you know, she is missing the opportunity to be able to raise them." However, Gilson was unable to recount any discussion respondent provided of the children's actual needs. Smith reported that unlike some clients, respondent actively reached out to talk and schedule appointments, and she was concerned about respondent's mental well-being depending on the outcome of this matter. However, neither of them observed respondent interacting with the children, and Gilson conceded that most of her information about respondent came from respondent herself, which is "what therapy is." Neither Gilson nor Smith were concerned about

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"Gator," and Gilson indicated that "Gator" had been present for some of respondent's remote telehealth sessions.

The trial court reflected that the question was an extremely close one, but it ultimately held that there was clear and convincing evidence to terminate respondent's parental rights under MCL 712A.19b(3)(c)( i ) and MCL 712A.19b(3)(j). The trial court found that respondent did not change CC's diaper for two days, and although respondent had obtained stable housing, she had a history of dating unfavorable individuals who would be watching RC and CC while respondent worked 40 hours a week. The trial court found that respondent did not benefit from all of the services throughout the proceedings. The trial court also found that there was no reasonable expectation that the conditions that led to the adjudication would be rectified within a reasonable time considering RC's and CC's ages because the proceedings began on May 20, 2018, respondent had made minimal progress since that time, and RC and CC have bonded with their foster parents, who are interested in providing permanency. Finally, the trial court held that, by a preponderance of the evidence, and on the basis of the record as a whole, terminating respondent's parental rights was in RC's and CC's best interests. The court reasoned that it was in RC's and CC's best interests to remain in a stable and preadoptive home. The trial court subsequently entered an order terminating respondent's parental rights to RC and CC. This appeal followed.

This Court reviews for clear error the trial court's decision that a ground for termination has been proven by clear and convincing evidence. In re Olive/Metts Minors , 297 Mich App 35, 40; 823 NW2d 144 (2012). "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." In re Hudson , 294 Mich App 261, 264; 817 NW2d 115 (2011). In reviewing the trial court's findings of fact, this Court gives due regard to the special opportunity of the trial court to judge the credibility of witnesses. In re Fried , 266 Mich App 535, 541; 702 NW2d 192 (2005).

Respondent argues trial court clearly erred in terminating respondent's parental rights to RC and CC because insufficient evidence was presented to warrant termination under MCL 712A.19b(3)(c)( i ) and (j). We disagree.

Termination of parental rights is proper under MCL 712A.19b(3)(c)( i ) if, after 182 days from the issuance of an initial dispositional order, "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." The conditions that led to the adjudication were respondent's physical abuse and neglect of the children, including multiple instances of striking one of the children and denying doing so; drug use; poor hygiene and a filthy or nonexistent home; association with dangerous or improper individuals, and drug use. Respondent had, commendably, obtained and maintained stable employment, and she had obtained housing, although there remained some doubts about the suitability of that housing. However, she continued to struggle with hygiene, association with improper individuals, drug use, and, critically, any comprehension of the needs of the children rather than her own. It was apparent that respondent did not meaningfully benefit from her CSP, but rather "went through the motions" by rote in an attempt

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to appear compliant, while continuing to fail to recognize that she had any problems. "[A] parent's failure to comply with the parent-agency agreement is evidence of a parent's failure to provide proper care and custody for the child." In re JK , 468 Mich 202, 214; 661 NW2d 216 (2003). "By the same token, the parent's compliance with the parent-agency agreement is evidence of [his] ability to provide proper care and custody." Id . (emphasis omitted).

RC and CC entered into foster care after it was reported that respondent had hit RC in the face. When RC and CC were taken to the hospital, CC's diaper was found unchanged for at least two days. Moreover, Muldary testified that he could not exactly determine respondent's potential for physical child abuse because she was not being truthful in her responses during her psychological evaluation with him. Respondent denied that she had any responsibility for the case and for the children's removal, and she even denied any prior involvement with CPS. She then said that she had been involved with CPS only once over the years, which was inconsistent with what she had previously reported about not having any prior involvement with CPS. Roberts further testified that respondent had an extensive history with CPS investigations, dating back to 2011, for a total of 15 cases altogether. Respondent also denied any anger problems and denied hitting RC. She claimed that the video recording of her hitting RC only made it look like she hit him when, in fact, she did not. Muldary further indicated in his report that if respondent had, in fact, completed a parenting class, then she would have demonstrated more parental awareness, empathy, and an improved problem-solving ability in parenting situations, but she did not.

Roberts also once witnessed respondent yell at RC, and respondent had shown up at DHHS on several occasions "shaking with anger about the foster parents." The evidence thus indicates that respondent frequently struggled with anger management, and although she had been going to therapy to work on it, the evidence does not suggest that respondent had benefitted from individual therapy or will benefit from more sessions within a reasonable time, considering that RC and CC were court wards for more than two years. This is especially significant in light of the evidence indicating that respondent did not take responsibility for the reasons RC and CC came into foster care, including the abuse and neglect. Although respondent was participating in ongoing therapy, the testimony from her therapists made it clear that respondent was only working on her own needs and continued to show little, if any, comprehension of her children's needs.

Furthermore, although respondent recently rectified the homelessness condition by obtaining housing, the evidence suggests that her apartment is still not suitable for RC and CC because respondent had an extensive history of dating and residing with dangerous individuals. Although respondent was not actually ordered not to associate with "Gator," her continued association with a dangerous individual and refusal to accept an easy opportunity to make herself less dependent upon him further suggests that she has not benefited from her service plan. See In re Kaczkowski , 325 Mich App 69, 77; 924 NW2d 1 (2018). Finally, respondent's hygiene had remained an area of concern throughout the case. For example, Roberts noted that when respondent left a room, respondent's odor lingered. Therefore, the trial court did not clearly err in finding that termination of respondent's parental rights was warranted under MCL 712A.19b(3)(c)( i ) because the conditions that led to the adjudication continued to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time.

Moreover, for termination to be proper under MCL 712A.19b(3)(j), petitioner must establish that "[t]here is a reasonable likelihood, based on the conduct or capacity of the child's

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parent, that the child will be harmed if he or she is returned to the home of the parent." "[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." In re White , 303 Mich App 701, 711; 846 NW2d 61 (2014). Under MCL 712A.19b(3)(j), harm can include either physical or emotional harm. In re Hudson , 294 Mich App at 268. For all of the reasons already discussed, it was clearly apparent that respondent had a history of physically harming or neglecting the children, and she failed to display any improved recognition of the children as people rather than possessions. Respondent's continued insistence on remaining with unsafe individuals, even when offered bus passes that would have increased her independence, further showed that she was unlikely to keep the children safe from harm, or refrain from harming them herself. Further, the testimony indicating that respondent has continued mental health issues, including anger management issues, further supports the trial court's findings that grounds for termination were established under MCL 712A.19b(3)(j). Therefore, the trial court did not clearly err in finding that MCL 712A.19b(3)(j) was established by clear and convincing evidence.

"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). Here, RC and CC had been in foster care for over two years. The testimony indicating that RC and CC have made significant strides in their placement and have bonded with their foster parents, who are interested in providing permanency, further supports the trial court's findings that terminating respondent's parental rights was in RC's and CC's best interests.

Affirmed.

/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola