In re Rippy

330 Mich.App. 350

948 N.W.2d 131

IN RE L. D. RIPPY, Minor.

No. 347809

Court of Appeals of Michigan.

Submitted September 10, 2019, at Detroit.

Decided November 14, 2019, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Lesley C. Fairrow, Assistant Attorney General for the Department of Health and Human Services.

Jeffrey M. Young for respondent.

Michigan Children's Law Center (by Alexandra Ghent) for the minor child.

Before: O'Brien, P.J., and Beckering and Letica, JJ.

O'Brien, P.J. Respondent appeals as of right the order terminating her parental rights to the minor child, LR, under MCL 712A.19b(3)(b)(i ) (the parent's act caused physical injury and there is a reasonable likelihood that the child will suffer from injury or abuse in the future in the parent's home), MCL 712A.19b(3)(g) (the parent failed to provide proper care or custody for the child), and MCL 712A.19b(3)(j) (there is a reasonable likelihood that the child will be harmed if returned to the parent's home). We affirm.

I. FACTS

On September 19, 2018, petitioner, the Department of Health and Human Services (DHHS), filed a petition for permanent custody of L.R. The DHHS alleged in the petition that on July 25, 2018, Children's Protective Services (CPS) received a complaint that on July 24, 2018, respondent gave birth to LR, who was in critical condition and had symptoms of fetal alcohol syndrome (FAS). The petition stated that LR was born prematurely at 32 weeks and that he would require long-term medical treatment because of suspected FAS. LR had the "physical characteristics of FAS, including: microcephaly, a thin upper lip, clenched jaw, lower set ears, webbed feet, and no testes." He also had an "intraventricular hemorrhage, hydrocephalus (buildup of fluid in the cavities deep within the brain), cystic encephalomalacia, and a small heart murmur." There was an additional concern that LR had a brain bleed that would require ongoing medical treatment. It was reported that LR had "very minimal brain activity," and that he was "brain dead and neurologically devastated." The DHHS alleged that respondent admitted to consuming alcohol throughout her pregnancy, and the DHHS requested termination of respondent's parental rights at the initial dispositional hearing.

At that hearing, CPS Specialist Kiana Anderson testified that respondent "didn't have any intention of planning for this baby" and that "she wanted to give her baby to her mom." Following the initial dispositional hearing, the trial court entered an order stating its findings of fact and conclusions of law and ultimately terminated respondent's parental rights.

II. REUNIFICATION EFFORTS

Respondent does not challenge the trial court's determination that statutory grounds existed for terminating her parental rights. Rather, she argues that the trial court erred by terminating her parental rights because the DHHS failed to make reasonable efforts to reunite her with LR and should have established a guardianship for LR with respondent's mother. We disagree.

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) (quotation marks and citation omitted). MCL 712A.19a(2)(a) states that reasonable efforts to reunify the child and family are not required if "[t]here 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." In turn, § 18 of the Child Protection Law, MCL 722.638, provides:

(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.

* * *

(v ) Life threatening injury.

* * *

(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 department shall include a request for termination of parental rights at the initial dispositional hearing as authorized under section 19b of chapter XIIA of 1939 PA 288, MCL 712A.19b.

Under MCR 3.977(E) :

The court shall order termination of the parental rights of a respondent at the initial dispositional hearing held pursuant to MCR 3.973, and shall order that additional efforts for reunification of the child with the respondent shall not be made, if

(1) the original, or amended, petition contains a request for termination;

(2) at the trial or plea proceedings, the trier of fact finds by a preponderance of the evidence that one or more of the grounds for assumption of jurisdiction over the child under MCL 712A.2(b) have been established;

(3) at the initial disposition hearing, the court finds on the basis of clear and convincing legally admissible evidence that had been introduced at the trial or plea proceedings, or that is introduced at the dispositional hearing, that one or more facts alleged in the petition:

(a) are true, and

(b) establish grounds for termination of parental rights under MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), or (m) ;

(4) termination of parental rights is in the child's best interests.

In its petition, the DHHS sought termination at the initial dispositional hearing under MCL 722.638 because it believed that LR had suffered severe physical abuse at the hands of respondent. The DHHS alleged that respondent excessively consumed alcohol while pregnant with LR, causing LR to be born prematurely with extreme and ongoing medical complications.

Following the initial dispositional hearing, the trial court found that respondent had a severe problem with alcohol that persisted while she was pregnant with LR and that she suffered from multiple mental health issues "that she stopped treating upon finding out she was pregnant." The trial court also found that LR was born with many medical issues characteristic of FAS, including "a thin upper lip, a clenched jaw, lower set ears, webbed feet, no testes, an interventricular hemorrhage, a build up of fluid in his brain cavities and a small heart murmur." On the basis of these medical issues, the trial court concluded that LR was a medically fragile child who would require special and lifelong medical care. It was for these reasons that the trial court found grounds to assume jurisdiction over LR.

And it was for similar reasons that the trial court held that the DHHS had established statutory grounds for termination by clear and convincing evidence. The trial court considered respondent's admission that she drank alcohol throughout her pregnancy; LR's resulting medical symptoms of FAS and need for ongoing, lifelong medical treatment; and respondent's failure to seek treatment for her alcoholism or mental health issues. On these facts, the trial court concluded that statutory grounds for termination were established under MCL 712A.19b(3)(b)(i ), (g), and (j). As will be discussed in more detail, the trial court also concluded that termination was in LR's best interests.

In light of its stated findings, the trial court satisfied the MCR 3.977(E) requirements necessary to terminate respondent's rights at the initial dispositional hearing. Also, it is clear from its stated findings that the trial court determined that LR had suffered severe physical abuse (respondent's excessive consumption of alcohol while pregnant) that resulted in a life-threatening injury (LR's FAS symptoms and the accompanying medical issues) and that respondent was the perpetrator of this abuse. These findings amount to a judicial determination that respondent subjected LR to aggravated circumstances as provided in MCL 722.638(1)¹ and (2).

Therefore, under MCL 712A.19a(2)(a), the DHHS was not required to make reasonable efforts to reunite respondent with LR, and respondent's argument that the DHHS failed to make reasonable efforts has no merit.²

As for respondent's argument that a guardianship should have been established, no one petitioned the trial court for a guardianship and there is no suggestion in the record that the grandmother with whom LR was placed would have agreed to that arrangement. In its initial petition, the DHHS requested termination of respondent's parental rights. Typically, "the appointment of a guardian is done in an effort to avoid termination of parental rights." In re TK , 306 Mich. App. 698, 705, 859 N.W.2d 208 (2014). And for a court to consider a guardianship before termination, one of two conditions must be met: either the DHHS must demonstrate "under [ MCL 712A.19a(8) ] that initiating the termination of parental rights to the child is clearly not in the child's best interests" or the court must "not order the agency to initiate termination" proceedings under MCL 712A.19a(8). MCL 712A.19a(9). See also In re COH , 495 Mich. 184, 197, 848 N.W.2d 107 (2014).

Even then, a court can order a guardianship only if it "determines that [doing so] is in the child's best interests[.]" MCL 712A.19a(9)(c). In this case, neither of the conditions precedent under MCL 712A.19a(9) were met, nor did the court determine that establishing a guardianship was in LR's best interests. In fact, the court concluded that termination was in LR's best interests as will be discussed in the next section. Accordingly, respondent's argument that the trial court should have established a guardianship for LR is without merit.

III. BEST INTERESTS

Respondent argues that the trial court...