In re Gabriel

In re GABRIEL/WHITE, Minors.

No. 356231

Court of Appeals of Michigan

August 12, 2021

UNPUBLISHED

Wayne Circuit Court Family Division LC No. 2016-523163-NA

Before: Riordan, P.J., and Markey and Swartzle, JJ.

PER CURIAM.

Respondent appeals by right the trial court's order terminating her parental rights to the minor children, TMW and CRG, under MCL 712A.19b(3)(b)(i) (the child or a sibling has suffered physical injury or sexual abuse, caused by the parent's act, and there is a reasonable likelihood that the child would suffer from injury or abuse in the foreseeable future if placed with the parent) (b)(ii) (the parent who had the opportunity to prevent the injury or abuse failed to do so, and there is a reasonable likelihood that the injury or abuse would happen again in the foreseeable future), (g) (although financially able to do so, the parent failed to provide proper care and custody, and no reasonable expectation that parent would do so within a reasonable time), (j) (reasonable likelihood of risk of harm), and (k)(iii) (parental abuse battering, torture, or other severe physical abuse).^[1] We affirm.

I. BACKGROUND

In May 2016, respondent was arrested for driving drunk while her license was suspended. She became suicidal and was transported to the hospital, where she began to bang her head and bite people. The hospital staff found cocaine in her vagina. The Oakland County Circuit Court removed TMW from respondent's home because of substance use, untreated mental health issues, and improper supervision. While TMW was still in foster care, respondent gave birth to CRG and he was also removed from respondent's care. Respondent was offered services, completed them, and the children were returned to her care. After their return to her care, in March 2017 and December 2018, Children's Protective Services (CPS) investigated additional complaints regarding respondent's treatment of the children, and substantiated those complaints.

On February 28, 2020, the Department of Health and Human Services (DHHS) filed the petition for removal and permanent custody in this case. In that petition, the DHHS alleged that respondent had stabbed TMW in the hand with a knife and hit her in the face with a broomstick handle, causing serious injuries and bruises. At the time, TMW was 10 years old. Following her arrest related to this incident, respondent was charged with second-degree felony child abuse, as well as felony assault with a dangerous weapon. Respondent was incarcerated on those charges and on charges of violating probation.

During an interview with CPS and a forensic interview with Kids-Talk, and as part of an interview with the Clinic for Child Study, TMW revealed a history of physical and mental abuse by respondent, including beatings with an extension cord, being slapped and hit with respondent's fists, respondent threatening to cut her hair while she was sleeping, respondent choking her until she could not breathe, and respondent threatening to killing her. TMW further reported that she wore long-sleeved shirts to school when there were bruises on her arms. TMW reported that her younger sibling, CRG, was also beaten with an extension cord and received other abuse at respondent's hands. Medical records from TMW's examination revealed "cutaneous findings" consistent with "a chronic pattern of physical abuse."

The trial-court record indicates that respondent has an extensive criminal history, including both misdemeanors and felonies involving physical violence and alcohol abuse. Additionally, she has a history of attention-deficit/hyperactivity disorder and depression, and has been diagnosed with substance-abuse and mental-health disorders. During the present case, respondent denied any physical abuse of her children, blamed TMW for the cut on the child's hand, accused TMW of inappropriate sexual behavior, and stated that she had no knowledge regarding how the bruises appeared on TMW's face.

Respondent stipulated to the trial court exercising jurisdiction over the children, and she pleaded no-contest to the allegations in the petition and to the statutory grounds upon which the request for termination of her parental rights was based. The trial court informed respondent of all her rights, and she stated that she understood them. Petitioner read portions from the CPS investigation report and the certified medical records into the record to establish a factual basis for respondent's no-contest plea to jurisdiction and the allegations in the petition. The trial court expressed satisfaction that a factual basis was established by a preponderance of the evidence to exercise jurisdiction, accepted respondent's no-contest plea, and found clear and convincing evidence to support the statutory grounds for termination of respondent's parental rights. The matter proceeded to a best-interests hearing. Based on the CPS investigation report, the medical records, the Clinic for Child Study report, and the testimony from witnesses and respondent, the trial court found by a preponderance of the evidence that termination of respondent's parental rights was in the best interests of both children.

Respondent now appeals the trial court's order terminating her parental rights to the minor children.

II. ANALYSIS

A. PROVISION OF SERVICES

On appeal, respondent first argues that termination of her parental rights was premature because she was not offered any services to address her parenting skills and mental health issues.

To preserve an issue for appellate review, the issue must be raised before, addressed by, and decided by the trial court. In re Killich, 319 Mich.App. 331, 336; 900 N.W.2d 692 (2017). Respondent did not raise the issue of services in the trial court. Therefore, this issue is not preserved for appellate review. See also In re Terry, 240 Mich.App. 14, 27; 610 N.W.2d 563 (2000). Where an issue was not preserved for appeal, this Court's review is limited to plain error affecting substantial rights. In re Utrera, 281 Mich.App. 1, 8-9; 761 N.W.2d 253 (2008). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. at 9.

In the present case, as authorized by MCL 712A.19b(4), petitioner sought termination of respondent's parental rights in the initial petition. This Court has held that where the petitioner's goal from the beginning is termination of parental rights, the petitioner is not required to provide reunification services. In re Moss, 301 Mich.App. 76, 91; 836 N.W.2d 182 (2013); In re HRC, 286 Mich.App. 444, 463; 781 N.W.2d 105 (2009). With that said, our Supreme Court has explained that reasonable efforts to reunify the child and family must be made in all cases except those involving aggravated circumstances under MCL 712A.19a(2). In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010). See also MCL 722.638(1). More recently, the Court explained:

Reasonable efforts to reunify the child and family must be made in all cases except those involving the circumstances delineated in MCL 712A.19a(2). In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010). On remand, the circuit court shall either order that the petitioner provide reasonable services to the respondent, or articulate a factual finding based on clear and convincing evidence that aggravated circumstances exist such that services are not required. [In re Simonetta, __Mich__; 959 N.W.2d 170 (2021).]

To determine whether the DHHS was required to offer respondent services before considering termination of her parental rights, we must examine whether aggravated circumstances existed under MCL 712A.19a(2)(a). The statute provides as follows:

(2) The court shall conduct a permanency planning hearing within 30 days after there is a judicial determination that reasonable efforts to reunite the child and family are not required. Reasonable efforts to reunify the child and family must be made in all cases except if any of the following apply:

(a) There is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638. [MCL 712A.19a(2)(a).]

MCL 722.638(1)(a) and (2) provide, in relevant part:

(1) The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply:

(a) The department determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child's home, has abused the child or a sibling of the child and the abuse included 1 or more of the following:

* * *

(iii) Battering, torture, or other severe physical abuse.

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(v) Life threatening injury.

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(2) In a petition submitted as required by subsection (1), if a parent is a suspected perpetrator or is suspected of placing the child at an unreasonable risk of harm due to the parent's failure to take reasonable steps to intervene to eliminate that risk, the family independence agency shall include a request for termination of parental rights at the initial dispositional hearing as authorized under section 19b.

Therefore, the trial court must find that "aggravated circumstances" were present in the case to find that reunification services are not required.

In the present case, respondent inflicted severe physical abuse and life-threatening injuries on TMW. TMW had been stabbed with a knife and hit on her head with a broom handle. She had been beaten with an extension cord. She had been threatened with death. These abuses placed TMW "at an unreasonable risk of harm." MCL 722.638(2). At the termination hearing the trial court found that...