In re Plaugher, Minors

1

In re PLAUGHER, Minors.

No. 358604

Court of Appeals of Michigan

June 9, 2022

UNPUBLISHED

Calhoun Circuit Court Family Division LC No. 2018-002809-NA

Before: Borrello, P.J., and Jansen and Murray, JJ.

PER CURIAM

After a remote hearing held over three days, the circuit court entered an order terminating the parental rights of respondent-mother to her three children under MCL 712A.19b(3)(c)(i) (failure or inability to rectify conditions of adjudication) and MCL 712A.19b(3)(j) (reasonable likelihood of harm).^[1] Respondent appeals by right arguing that the trial court clearly erred by terminating her parental rights, and that the trial court violated her due-process rights by conducting the termination hearing using videoconferencing technology and by taking nine months to appoint appellate counsel after respondent's timely request. Finding no error requiring reversal, we affirm.

I. RELEVANT FACTS AND PROCEEDINGS

The family came to the attention of petitioner, the Department of Health and Human Services (DHHS), in 2016, when the two oldest children were found unsupervised at a McDonald's restaurant. The children were four years old and two years old at the time. Beginning in June 2018, petitioner provided various services to the family in an effort to prevent removal of the children from the home. However, on October 8, 2018, Children's Protective Services received a request for immediate assistance when respondent was found unresponsive at her home and the children were found screaming in the hallway.

The next day, petitioner filed a complaint alleging neglect. Petitioner identified several instances in which the children had wandered away from the home unnoticed or been left in the home unsupervised. Petitioner also alleged that the home was strewn with garbage, including food, dirty dishes, and soiled diapers; that the home was infested with cockroaches; and that drug paraphernalia was within reach of the children. The children were removed from the home on October 9, 2018. After a petition was filed, respondent pleaded to the allegations involving neglect, failure to supervise, domestic violence, and failure to provide a safe, clean environment for the children. The trial court ordered the parents to comply with, and benefit from, a case service plan. The initial parent-agency treatment plan called for the parents to undergo psychological evaluations; to engage in individual counseling, substance abuse counseling, random drug screens, and in-home parenting education; and to maintain a clean and safe home.

After a sluggish start, the parents made considerable progress toward reunification. In January 2020, both parents were in such compliance that petitioner recommended reunification services and return of the children one by one within 30 days. Reunification never occurred, and by July 2020, petitioner recommended changing the goal from reunification to adoption on the basis of the parents' lack of consistency regarding drug screens, parenting time, and communication. The children came into care with severe signs of neglect, and needed extensive therapeutic and occupational care. The parents' inability to call in consistently for drug screens, to attend parenting time, and to communicate with the foster parents and petitioner did not signify that the parents had acquired the skills necessary to provide the coordination, communication, and stability necessary to keep their children safe and healthy.

Both the prosecutor and the lawyer-guardian ad litem (LGAL) recommended initiating termination proceedings. Respondent advocated for more time, stating that she had been consistently employed and generally had consistent housing, and that all of her drug screens were negative. Respondent attributed the problems she had to the pandemic and to the fact that petitioner did not give her a phone to make sure she could attend video parenting time. The referee agreed with the LGAL and saw no compelling reason not to order a goal change to adoption. Petitioner filed a supplemental petition to terminate the parents' parental rights.

After hearing testimony and oral arguments, the trial court found that clear and convincing evidence established grounds to terminate respondent's parental rights under MCR 712A.19b(3)(c)(i). The trial court found that the children had been in care for over two years and that conditions remained essentially the same as at the adjudication. The court commented that respondent had "no realization whatsoever of what her children have actually been through," that she "misrepresented situations on a number of occasions," and that she "change[d] her story whenever it [was] convenient for her facts and circumstances." The court also noted that there had been domestic violence in the relationship from the beginning and that it continued, but that respondent was unwilling to address it or to receive treatment for it. As to substance abuse, the court found that respondent missed 50% of her drug screens, and missed screens were deemed positive. The court also found credible the foster parent's testimony regarding parenting time, and it concluded that respondent was only 50% to 60% compliant with parenting time. The trial court commended respondent on the progress she had made, but it observed that this was a case of "too little too late"-after more than two years, respondent was just getting started again. The trial court also found that clear and convincing evidence established grounds for termination under MCR 712A.19b(3)(j), stating that it had no doubt that to place the children back in an environment of domestic violence, chaos, substance abuse, and unfit home conditions would negate all the progress the children had made and could have lifelong consequences for them.

Turning to the children's best interests, the trial court acknowledged the children's bond with respondent, but it noted that they were also bonded to the foster mother. The court acknowledged that the children had made substantial progress thanks to the efforts of the foster parents, but it asserted that the children needed to be together in a stable, permanent home, free from domestic violence. The court noted that the foster mother loved the children, that she and the children were bonded, and that the children were together in a preadoptive home. On the basis of the foregoing, the trial court entered an order terminating the parents' parental rights. This appeal by respondent followed.

II. TERMINATION OF PARENTAL RIGHTS

Respondent first argues that the trial court clearly erred by finding that statutory grounds for termination had been established by clear and convincing evidence and by finding that a preponderance of the evidence established that termination was in her children's best interests. We disagree.

A. STANDARD OF REVIEW

An appellate court "review[s] for clear error . . . the court's decision that a ground for termination has been proven by clear and convincing evidence . . . ." In re Trejo, 462 Mich. 341, 356-357; 612 N.W.2d 407 (2000). See also MCR 3.977(K). 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 was made. In re Mason, 486 Mich. 142, 152; 782 N.W.2d 747 (2010). To be clearly erroneous, a decision must be more than maybe or probably wrong. In re Sours, 459 Mich. 624, 633; 593 N.W.2d 520 (1999); In re Williams, 286 Mich.App. 253, 271; 779 N.W.2d 286 (2009). "Further, regard is to be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." In re Ellis, 294 Mich.App. 30, 33; 817 N.W.2d 111 (2011). See also In re Miller, 433 Mich. 331, 337; 445 N.W.2d 161 (1989); "Appellate courts are obligated to defer to a trial court's factual findings at termination proceedings if those findings do not constitute clear error." In re Rood, 483 Mich. 73, 90; 763 N.W.2d 587 (2009). "If the trial court did not clearly err by finding one statutory ground existed, then that one ground is sufficient to affirm the termination of the respondent's parental rights." In re Sanborn, ___Mich App ___, ___; ___N.W.2d ___(2021) (Docket Nos. 354915 and 354916); slip op at 9.

Whether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence. In re Moss, 301 Mich.App. 76, 90; 836 N.W.2d 182 (2013). The trial court's findings regarding the child's best interests are also reviewed under the clearly erroneous standard. MCR 3.977(K); In re Rood, 483 Mich. at 90-91.

B. STATUTORY GROUNDS

Natural parents have a "fundamental liberty interest . . . in the care, custody, and management of their children," and this interest "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v Kramer, 455 U.S. 745, 753; 102 S.Ct. 1388; 71 L.Ed.2d 599 (1982). However, "[a] parent's right to control the custody and care of her children is not absolute, as the state has a legitimate interest in protecting 'the moral, emotional, mental, and physical welfare of the minor' and in some circumstances 'neglectful parents may be separated from their children.'" In re Sanders, 495 Mich. 394, 409-410; 852 N.W.2d 524 (2014), quoting Stanley v Illinois, 405 U.S. 645, 652; 92 S.Ct. 1208; 31 L.Ed.2d 551 (1972). "In order to terminate parental rights, the trial court must find by clear and convincing evidence that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been met." In re VanDalen, 293 Mich.App. 120, 139; 809 N.W.2d 412 (2011).

Evidence is clear and convincing if it

"produces in the mind of the trier of fact a firm belief or conviction as to the

...