Michigan Court Of Appeals Affirms Parental Rights Termination

On May 5, 2015, the Michigan Court of Appeals held in an abuse and neglect case that the trial court did not err in terminating a mother's parental rights to her children for a number of reasons.

In In re Gonzalez/Martinez Minors, Docket No. 324168, the Michigan Court of Appeals addressed the issue of whether the trial court erred in terminating a mother's rights to her children when the mother failed to comply with a number of court-ordered conditions.

The Court first recited the facts of the case.

MG and HM were removed from respondent’s care and placed with relatives after it was discovered that respondent’s boyfriend had sexually assaulted both children. The children told a worker from the Department of Human Services that when they first told their mother of the abuse, she slapped HM and called MG a liar. Respondent was allowed supervised parenting time, but the Department expressed concern about the visits after a worker observed respondent “coaching” MG about the sexual assault case. A mental health professional who evaluated respondent recommended suspending respondent’s parenting time and the court agreed.

The Department initially sought immediate termination of respondent’s parental rights, but withdrew the petition and offered respondent a parent agency agreement. During a later hearing, it was revealed that respondent had kept in contact with her boyfriend after his arrest. Respondent also missed several drug screens and tested positive for cocaine. Because of these events, the Department again petitioned for the termination of respondent’s parental rights . . . .

[After a hearing,] the hearing referee found that the Department had established by clear and convincing evidence grounds for termination under MCL 712A.19b(3)(b)(ii), (3)(g), and (3)(j). Regarding § 19b(3)(b)(ii), the referee noted respondent’s refusal to believe the allegations of sexual abuse and continued relationship with her children’s alleged abuser. The referee also felt that respondent’s continued problems with drug use, her lack of appropriate housing, her ongoing mental health issues, the number of appointments she had missed, her failure to enter an in- patient treatment program, and the criminal charges she was facing, implicated § 19b(3)(g). As for § 19b(3)(j), the referee referred to respondent’s lack of stability, the ongoing drug problems, and the criminal activity. However, the referee found that there was not adequate grounds for terminating respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (3)(c)(ii).

The referee further found that termination was in the children’s best interests. The referee stated that the children needed permanency and safety, which respondent could not provide. The referee also found it noteworthy that the children had been traumatized while in respondent’s care and were scared of her. The referee stated that the children needed finality beyond a mere guardianship. The trial court adopted the referee’s findings and entered the order of termination.

The Court's analysis of whether the trial court erred in affirming the referee's findings and recommendations followed.

There was testimony and evidence that established that respondent’s boyfriend had sexually abused the children. There was also evidence that respondent did not believe her children’s revelations about the abuse, including evidence that she called MG a liar. And Heath testified that HM reported that respondent “did nothing to stop” the abuse after the child told respondent about it. This was clear and convincing evidence that respondent had the opportunity to prevent the abuse, but failed to do so.

Respondent contends that the record does not support termination on this ground because the children’s abuser is currently in jail and going to be deported. Even assuming this to be true, the trial court was still justified in finding that termination was warranted under this ground. The legislature did not require that there be clear and convincing evidence that the children were at risk from the same abuser. Rather, MCL 712A.19b(3)(b)(ii) addresses the harm occasioned by a parent who is unwilling or unable to protect his or her children from abuse. The evidence established that respondent placed her desire to be with her boyfriend—despite his abuse—over the needs of her children, and there was evidence that she would likely continue to place her personal desires over her children’s welfare . . . .

With respect to MCL 712A.19b(3)(g), there was evidence that respondent failed to comply with the terms of her agency agreement. See In re JK, 468 Mich at 214 (stating that a parent’s failure to comply with the agency agreement is evidence of an inability to provide proper care and custody). Respondent tested positive for cocaine, had called MG a liar with respect to the allegations of sexual abuse, and had been charged with retail fraud. She was found passed out in the home of the 83-year-old man she was living with after consuming alcohol and pills. This was plainly not a stable housing situation. Additionally, there was evidence that respondent was not consistent in attending counseling and treatment sessions, was unemployed and only received a small amount of monthly income in the form of social security disability, and failed to adequately address her mental health issues. Therefore, even though the time between the imposition of the agency agreement and termination was only 13 weeks, respondent’s actions demonstrated that she was unable to alter her behavior and provide a stable home . . . .

Finally, there was ample evidence to suggest that the children would be subject to harm if returned to respondent’s care. See MCL 712A.19b(3)(j). There was evidence that respondent had difficulty controlling her emotional stability and aggression, and evidence from two officers suggested that respondent had committed a violent assault on an older woman. Heath testified that respondent slapped HM when the child told respondent of the sexual abuse. And the children’s current caretakers, their aunt and uncle, do not feel that respondent is safe. There was also testimony that MG specifically thinks that respondent will kill him if he is returned to her. Accordingly, it was not clearly erroneous for the trial court to conclude that there was a reasonable likelihood that the children would be harmed if returned to respondent. In re JK, 468 Mich at 209-210.

In the present case, the children were placed with their aunt and uncle. However, a guardianship had been considered and rejected because the relatives did not feel safe around respondent and did not want to have contact with her. Given the facts, that fear is understandable. There was evidence that respondent had violently attacked an older women, had not successfully addressed her substance abuse and mental health issues, and was not motivated to make the necessary changes to address her substance abuse and mental health issues. She also continued to have contact with the children’s abuser, even going so far as to indicate her desire to start a family with him.

The children’s relatives were willing to adopt them, and both children were excelling in their new environment. The trial court’s finding that termination was in the best interests of the children was not clearly erroneous. In re JK, 468 Mich at 209-210.