In re Curl

1

In re CURL, Minors.

No. 369148

Court of Appeals of Michigan

October 29, 2024

UNPUBLISHED

Genesee Circuit Court Family Division LC No. 04-118920-NA

Before: Michael J. Riordan, P.J., and Adrienne N. Young and Randy J. Wallace, JJ.

PER CURIAM.

Respondent-mother appeals by right the circuit court order terminating her parental rights to her two children under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (child at risk of harm if returned to parent). We reverse and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

The children at issue in this case, MMC and MEC, were born on September 15, 2014 and August 22, 2015, respectively. Prior to their births, respondent-mother had her parental rights to one of two previous children terminated. See In re Dunbar-Wildman, unpublished per curiam opinion of the Court of Appeals, issued October 21, 2008 (Docket No 280472). In that case, we affirmed termination because respondent-mother, who tested positive for cocaine at the time of giving birth, "had been unsuccessful, for a significant period of time, in addressing the housing issue and her substance abuse problem," and she had been unable to maintain sobriety or housing in the year before termination. Id. at 2.

The record here reflects no involvement of Children's Protective Services (CPS) or the Department of Health and Human Services (DHHS) from the birth of the children until 2018, when a case with DHHS involving substance abuse and domestic violence was opened. Less than a year later, the trial court took jurisdiction over the children on the basis that respondent-mother had improperly supervised them after a complaint that respondent-mother was found to be intoxicated inside a vehicle and was preparing to drive with the children in the car. At one progress report hearing, the prosecutor stated that "honestly, this is my favorite case both parents have been super compliant. Every time I ask them to do something, they ask when where, and how?" Soon after this positive report, the children were returned to respondent-mother's home with the attorney for the children remarking that "I think mom should be proud of the work she has done."

In February 2021, DHHS petitioned to reopen respondent-mother's case. Respondentmother pleaded no contest to allegations that the children saw respondent-father abusing her and called 911. As a result of respondent-father's violence, respondent-mother was hospitalized for a broken jaw, two black eyes, and bleeding on the brain. The court assumed jurisdiction over the children on the basis of respondent-mother's plea. At a preliminary hearing in March 2021, respondent-mother had been 43 days sober and the trial court agreed to keep the children at respondent-mother's house, over an agency request to transfer the children to their maternal aunt. The trial court ordered respondent-mother to continue substance-abuse treatment and drug screens, participate in mental-health treatment, obtain or maintain housing and a legal source of income, and maintain the no-contact order with respondent-father as part of its initial order of disposition.

Eventually, respondent-mother agreed to participate in an in-patient substance use program, and agreed to the children being placed with their maternal aunt. Respondent-mother was actively searching for a different family placement, however, because maternal aunt was "speaking badly of [mom] in front of the children" and making scheduled visitations difficult. By October 2021, respondent-mother had completed her inpatient program, however, placement with the maternal aunt continued to allow respondent-mother to further demonstrate her ability to stay substance-free. In January 2022, the court noted that while respondent-mother had some positive test results for substances over the last few months, overall, progress had been made. Of particular note was respondent-mother's established relationship with a therapist. Placement remained with the maternal aunt because the court observed it could not legally mandate a change to what was a voluntary placement.

In March 2022, respondent-mother and respondent-father allegedly appeared at maternal aunt's home unannounced and intoxicated. As a result, the children were formally removed from respondent-mother's care. In April 2022, DHHS proposed that the children's permanency goal change from reunification to guardianship with their maternal aunt, but respondent-mother opposed the change and the court denied the request to change the goal.

The record from a July 2022 hearing reflects that respondent-mother had completed her parenting classes and was actively participating in outpatient therapy for alcohol and narcotics abuse. From the last 18 drug screens she had taken, one was positive for cocaine and five were positive for substances other than cocaine. Respondent-mother underwent a psychological evaluation, and enrolled in outpatient behavioral health programming. She did not obtain a separate, recommended psychiatric evaluation. She had missed several scheduled parenting time visits but counsel for respondent-mother explained that those absences were due to illness and work being done on her home. The court continued with the agency recommendations, stating that while there were some positives here, "mom, especially, needs to have a longer pattern of being clean before we can recommend reunification." Although respondent-mother had an additional positive test for cocaine in the interim, at an October 2022 hearing, DHHS was given discretion to expand respondent-mother's parenting visits to unsupervised or overnight visits and the goal remained reunification.

But, in November and December 2022, respondent-mother was positive for cocaine and benzodiazepines and supervised parenting time resumed. At a February 2023 hearing, the nocontact order between respondents was lifted after representations that the domestic-violence situation had been resolved and by that point, respondent-mother was enrolled in Odyssey House programming for substance abuse treatment. The court agreed with DHHS to change the goal to termination of parental rights. At a follow up hearing in April, incidents of domestic violence that had not been previously acknowledged were placed on the record and the trial court suspended all parent visits and changed respondent-father's goal to termination as well. The court declined to reinstate the no contact order between respondents stating that they could "keep talking . . . keep dealing with each other . . . keep engaging in [domestic violence], substance abuse, whatever, whatever you want to do. You're grown. The only thing you will lose is your children." The Court added that it was "not concerned with [respondent-mother] at all right now. It is concerned with those babies."

At a May 2023 hearing, DHHS stated that once the placement goal changed to termination, they had no services in place any longer for respondent-mother. Nevertheless, respondent-mother had enrolled herself into Odyssey House for further treatment. By July, respondent-mother had also completed a parenting class. Around that time, respondent-father passed away. DHHS would later report that there were no verified incidents of domestic abuse between respondent-father and respondent-mother from January or February 2023 through the date of his death.

Respondent-mother reenrolled herself in Odyssey House for further programming, following a relapse around the time of respondent-father's death. Respondent-mother also requested a visit with her children to grieve the loss of their father. Respondent-mother had not been able to attend the funeral or visitation with her children. The court denied that request, telling respondent-mother "we are at a place where your parental rights will likely be terminated." At a November 2023 pre-trial hearing, respondent-mother was still enrolled in Odyssey House.

The termination hearing was held over two days at the end of November 2023. The children's caseworker testified that respondent-mother had not completed her mental health treatment and had some positive drug screens revealing cocaine, benzodiazepine, and opiate use. The caseworker also testified that respondent-mother had been "doing well" at her treatment at Odyssey House but had never completed the full programming there. She testified that she believed Odyssey House to be a beneficial program. She testified that respondent-mother had stable housing and some "odd jobs" for employment. While the caseworker did not believe respondent-mother benefitted from her substance abuse classes, she did testify that respondentmother completed and benefitted from parenting courses. Overall, though, the caseworker believed mom to be too unstable with respect to her substance use to parent her children. She also added that the children "love the[ir] parents" and have a bond with respondent-mother.

The maternal aunt testified as to the family history of substance use issues and her willingness to adopt the children. She testified that if respondent-mother "is in a good place, she's sober, she's being responsible" she could have contact with the children. She testified that the children "love their mom" and are "sad" that they cannot return home to her. Maternal aunt commented, too, that respondent-mother "look[s] very good now."

Respondent-mother's substance-abuse therapist testified that respondent-mother had committed to 90 days in the inpatient program, that she had progressed to the second of four levels, and that she had demonstrated progress. The therapist observed two phone calls between respondent-mother and her...