In re McGhee

1

In re M. A. MCGHEE, Minor.

No. 364230

Court of Appeals of Michigan

July 20, 2023

UNPUBLISHED

Oakland Circuit Court Family Division LC No. 2022-884717-NA

Before: CAMERON, P.J., and BORRELLO and O'BRIEN, JJ.

PER CURIAM

Respondent^[1] appeals as of right the trial court's order terminating her parental rights to the minor child, MAM, under MCL 712A.19b(3)(g) (failure to provide proper care or custody), MCL 712A.19b(3)(i) (parental rights were terminated to a sibling because of serious or chronic neglect and respondent has failed to rectify those conditions), and MCL 712A.19b(3)(j) (reasonable likelihood of harm if returned to parent). We affirm.

I. FACTUAL BACKGROUND

On April 11, 2022, petitioner, the Department of Health and Human Services (DHHS), filed a permanent custody petition requesting that the trial court take jurisdiction over MAM find a statutory basis for termination of respondent's rights under MCL 712A.19b(3)(g), (i), and (j), and find that termination is in MAM's best interests. The petition alleged that (1) respondent had an extensive history with Children's Protective Services (CPS), which resulted in the termination of her parental rights to four other minor children in 2005 and 2018 due to her significant substance use, unstable housing, and physical neglect, (2) respondent tested positive for marijuana, benzodiazepines, and opiates on March 13, 2022, (3) MAM was born with a positive meconium screen for cocaine and opiates, and consequently suffered from withdrawals and Neonatal Abstinence Syndrome (NAS), and (4) while the father of MAM signed an affidavit of parentage both respondent and the father acknowledged that the biological father of MAM is unknown. The petition further alleged that (1) respondent did not seek any prenatal care or obtain a crib, car seat, clothing, or any other necessities to provide for the care and custody of MAM, before or after her birth, (2) respondent did not possess adequate housing or employment, and (3) respondent sustained a brain injury in 2020 because of a nonfatal drug overdose, which negatively impacted her short-term memory and overall ability to function.

Following a preliminary hearing, a referee authorized the petition and ordered supervised parenting time for respondent, while MAM was placed in a nonrelative foster home.

On September 19, 2022, a combined adjudication and termination hearing was held before a referee. Petitioner first requested that the referee take judicial notice of the three previous cases in the Oakland County Circuit Court, which addressed the termination of respondent's parental rights to the four other children. Petitioner further moved to admit the hospital records of respondent and MAM. The referee agreed to take judicial notice of the legal file associated with the three previous termination cases, but excluded the relevant social files. The referee additionally admitted the two medical records concerning respondent and MAM.

Sara Peoples, a CPS investigator, testified on behalf of petitioner. Peoples stated that she first met respondent in 2017, and that she was aware of respondent's history with CPS. Peoples testified that she received a CPS complaint concerning MAM because she was born positive for cocaine and opiates and suffered from withdrawals. Peoples stated that she interviewed respondent, but respondent did not say much and reported having a brain injury. Peoples said that respondent was unable to respond to questions concerning her substance use, previous terminations, or the days of birth of the older children.

Peoples testified that while respondent expressed that she hoped to care for MAM following her birth, respondent did not have the basic necessities required such as a safe place for MAM to sleep, a car seat, diapers, or formula. Peoples explained that petitioner was requesting the termination of respondent's parental rights to MAM because respondent had an extensive history with CPS and a long history of substance, unstable housing, and physical neglect of the previous four children. Peoples further testified that she was concerned about respondent's overall ability to care for MAM because of respondent's brain injury. Peoples testified that respondent admitted that she did not receive any prenatal care because she found out she was pregnant approximately a month before she gave birth.

Peoples additionally testified about respondent's interactions with MAM during supervised parenting time, and stated that respondent was very uncomfortable holding the baby and could not move around while holding her. Peoples also testified that respondent

had a difficult time making a bottle for the baby. [Peoples] had to repeat several times the steps that [respondent] had to make, and it was adding two ounces of water and one scoop of formula to the bottle. And she-she was having a difficult time even managing that.

Peoples said that she was unsure whether respondent's condition was something that she could work through and improve with a case service plan.

The referee found that there were statutory grounds to exercise jurisdiction over MAM pursuant to MCL 712A.2(b)(1) and (2) because of (1) respondent's lack of prenatal care, (2) respondent's substance abuse during pregnancy, (3) the previous terminations of the parental rights of respondent to four other children, and (4) respondent's lack of independent, adequate housing and a legal source of income.

The referee then proceeded to the termination phase of the hearing. Following the parties' arguments, the referee determined that there were statutory grounds to terminate respondent's parental rights to MAM under MCL 712A.19b(3)(g), (i), and (j). With regard to MCL 712A.19b(3)(g), the referee stated that while there was evidence that respondent had a brain injury, he did not hear any evidence that, because of that injury, respondent was unable to work or gain employment. Furthermore, in reviewing respondent's three prior terminations cases, the referee found that respondent had a history of not being able to take care of children. The referee also found that the evidence clearly supported that respondent could not provide proper care for the child due to her substance abuse, lack of income, and lack of housing.

Concerning MCL 712A.19b(3)(i), the referee found that petitioner established by clear and convincing evidence that (1) respondent's rights to the four other children were terminated due to serious and chronic neglect, which was demonstrated in those cases by respondent's lack of income, lack of housing, and substance abuse issues, and (2) respondent had still not rectified those conditions. In making this finding, the referee emphasized that there was no evidence that respondent had even taken the initial steps to begin rectifying those conditions, such as by engaging in substance abuse treatment.

The referee also found that petitioner established grounds for termination under MCL 712A.19b(3)(j). The referee found that there was a reasonable likelihood that MAM would be harmed if returned to respondent because respondent had been struggling with income, housing, and substance abuse for well-over a decade, and there was no sign of those issues being rectified within a reasonable time.

On November 1, 2022, a best-interests hearing was held before a referee. Nicole Rowley, a foster care case manager assigned to MAM and respondent, testified that she provided respondent with assistance obtaining legal documentation for herself, such as an identification card. With regard to respondent's parenting ability, Rowley stated the following:

So [respondent] had difficulty with basic child-rearing practices and infant care. For example, due to [respondent's] short-term memory loss, [Rowley] was required to remind her frequently that it wasn't time for [MAM] to be fed, there were a couple instances where [respondent] had forgotten whether she had changed [MAM's] diaper or not, and you know, stated that she did although she didn't. And so [Rowley] was required to remind her that her diaper needed to be changed, and so on.

Rowley testified that respondent's dementia and short-term memory loss as a result of her 2020 nonfatal opioid overdose impacted her ability to provide for the care and custody of MAM in the present and future. Rowley did not believe that respondent could provide permanency, stability, and finality in MAM's life because respondent rights were terminated to four other children and the reasons that MAM was brought into care were the same reasons for respondent's prior terminations. Rowley believed that MAM would be at a continued risk of harm if placed in respondent's care due to respondent's severe substance abuse history. Rowley further expressed that there were no services that the DHHS could provide to respondent to alleviate any of the concerns within a reasonable period of time. Finally, Rowley testified that she previously discussed substance abuse treatment options with respondent and made recommendations, and while respondent indicated that she was willing to participate in a program if required by the court, respondent never provided any proof of enrollment.

Brenda Mahoney, a foster care worker, observed respondent during supervised parenting time, and testified at the best interests hearing that respondent required redirection and relied on the father to remind her of when diaper changes and feedings were necessary and to help her with those tasks. Mahoney did not believe that respondent's need for redirection could be rectified through parenting classes due to respondent's memory issues. For example, Mahoney testified that respondent inadvertently fed MAM too much and she got sick, despite being told MAM's feeding schedule and the...