IN RE BENNETT/KNOX MINORS (Per Curiam Opinion)
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED July 29, 2021 In re BENNETT/KNOX, Minors. No. 355204 Sanilac Circuit Court Family Division LC No. 19-036272-NA Before: GADOLA, P.J., and JANSEN and O’BRIEN, JJ. PER CURIAM. Respondent appeals as of right the trial court’s order terminating her parental rights to her two children, AB and KK, under MCL 712A.19b(3)(c)(i) (failure to rectify the conditions that led to adjudication), (c)(ii) (failure to rectify other conditions), (g) (failure to provide proper care and custody), and (j) (reasonable likelihood child will be harmed if returned to parent). We affirm. I. FACTS In 2019, AB and KK were removed from respondent’s care upon allegations of medical neglect. At that time, AB was 4 years old and KK was 5 months old, and the children were living with respondent and KK’s father, to whom respondent was married. Petitioner, Department of Health and Human Services (DHHS), presented evidence to the trial court that respondent was not providing AB with needed seizure medication and was not adequately addressing KK’s failure to gain weight adequately. KK was diagnosed as failing to thrive and was hospitalized, and was thereafter diagnosed with an intestinal disorder requiring surgery. KK also was diagnosed with microcephaly. After the children were removed from the care of respondent and KK’s father, KK was placed in a licensed foster home and AB was placed with his biological father. Petitioner provided respondent with services aimed at reunifying her with the children. These services included parenting skills education, psychological evaluation, mental health counseling, and supportive visitation. Although respondent participated in the services, she failed to benefit from them. At the termination hearing, several witnesses including AB’s therapist and KK’s pediatrician testified that respondent had not yet learned to parent the children safely. At the conclusion of the termination hearing, the trial court determined that statutory bases for termination had been demonstrated by clear and convincing evidence under MCL -1- 712A.19b(3)(c)(i), (c)(ii), (g), and (j). The trial court also found that termination of respondent’s parental rights was in the best interests of the children. Respondent1 now appeals. II. DISCUSSION A. STATUTORY BASIS FOR TERMINATION Respondent contends that the trial court erred by finding that clear and convincing evidence established a statutory basis for termination of her parental rights to AB and KK. We disagree. To terminate parental rights, the trial court must find that at least one statutory basis for termination under MCL 712A.19b(3) has been established by clear and convincing evidence. In re Keillor, 325 Mich App 80, 85; 923 NW2d 617 (2018). We review for clear error the trial court’s determination that a statutory basis for termination of parental rights has been established by clear and convincing evidence. In re Ellis, 294 Mich App 30, 33; 817 NW2d 111 (2011). We also review for clear error the trial court’s factual findings supporting its determination. Id. A factual finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made. Id. A finding is not clearly erroneous unless it is more than possibly or probably incorrect. Id. In this case, the trial court terminated respondent’s parental rights under MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Those statutory sections provide: (3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following: * * * (c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following: (i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age. (ii) Other conditions exist that cause the child to come within the court’s jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age. KK’s father was a respondent in the proceedings before the trial court, but is not a party to this appeal. 1 -2- * * * (g) The parent, although, in the court’s discretion, financially able to do so, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age. * * * (j) There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent. Termination of parental rights is proper under subsection (c)(i) when “the totality of the evidence amply supports” that the parent has not accomplished “any meaningful change in the conditions” that led to the trial court assuming jurisdiction of the child, In re Williams, 286 Mich App 253, 272; 779 NW2d 286 (2009), and when there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age. MCL 712A.19b(3)(c)(i). Termination under subsection (3)(g) is proper when, although the parent is financially able to do so, the parent “fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.” MCL 712A.19b(3)(g). Failure of a parent to comply with and benefit from a case service plan is evidence that the parent will not be able to provide proper care and custody for the child. In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014). Termination under subsection (3)(j) is proper when “[t]here is a reasonable likelihood, based on the conduct of capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.” MCL 712A.19b(3)(j). In this case, the record supports the trial court’s conclusion that based on respondent’s history of medically neglecting the children and respondent’s failure to gain the necessary skills to rectify that situation, the children would suffer harm if returned to her care. Both KK and AB have special medical needs requiring a caregiver skilled in responding to their needs. Respondent was provided services for several months aimed at providing her with the skills and support necessary for her to be reunified with the children. Respondent complied with the services offered, but did not benefit from those services. Specifically, a child protective services investigator testified that she investigated the family in March 2019. Respondent told her that she was not giving AB his anti-seizure medication because she did not believe that he had a seizure disorder; respondent also had canceled AB’s medical appointments. AB’s therapist testified that when AB first attended therapy, he engaged in self-harm and was diagnosed with reactive-attachment disorder; that diagnosis later was changed to post-traumatic stress disorder (PTSD). The therapist testified that the withholding of his seizure medication would have contributed to the child’s PTSD. Although the therapist instructed respondent about “psychoeducation” tools to help AB, respondent did not use the tools consistently. The therapist testified that she doubted that respondent could provide the consistent and supportive routine care that the child needed to thrive. -3- At the time KK was removed from respondent’s care she was extremely underweight, being approximately seven pounds at the age of four months, and needed hospitalization. When KK was admitted to the hospital shortly thereafter and it was discovered that the infant required surgery, respondent visited the child only once during the week the child was hospitalized and declined the offered resources that would have enabled her to stay with KK at the hospital. KK’s pediatrician testified that KK has developmental delays requiring close monitoring, and that respondent lacks the ability to follow a plan at home to address the child’s medical needs. The pediatrician testified that she worked with respondent but was unable to get a “learning response” from her that demonstrated an understanding of the children’s needs, and that respondent appeared unable to implement the care plan discussed or to show any improvement in the ability to do so. The evidence thus established that respondent did not provide adequate medical care for the children while they were in her care, had not acquired the skills and understanding necessary to do so while being offered services, and was unlikely to be able to do so within a reasonable time considering the children’s ages. The evidence therefore supports the finding that the conditions that caused the children to be removed from respondent’s care continued to exist at the time of termination, that respondent was unlikely to be able to provide the children with proper care, and that it was likely that the children would be harmed if returned to respondent’s care. See MCL 712A.19b(3)(c)(i), (g), and (j). Although respondent participated in services offered to her, she did not benefit from the services, failing to demonstrate progress or that she had gained the insight and skills necessary to parent two medically fragile children. See Williams, 286 Mich App at 272. The evidence thus supports the trial court’s findings under MCL 712A.19b(3)(c)(i), (g), and (j).2 The trial court therefore did not clearly err by determining that a statutory basis for termination of parental rights had been established by clear and convincing evidence. B. BEST INTERESTS Respondent also contends that the trial court erred by finding that termination of her parental rights was in the best interests of the children. Respondent argues that the trial court erred by failing to consider that AB was placed with a relative, a fact that weighs against termination. Respondent further argues that because AB was placed with a relative and KK was placed in foster care, the trial court incorrectly concluded that the children were similarly situated and therefore erred by failing to consider the best interests of each child separately. We disagree. Once a statutory ground for termination has been demonstrated, the trial court must determine whether a preponderance of the evidence establishes that termination is in the best interests of the child. MCL 712A.19b(5); In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). If the trial court finds that a preponderance of the evidence establishes that termination is in the best interests of the child, the trial court is required to terminate the parent’s parental rights. Because only one statutory ground is required to terminate a respondent’s parental rights, we need not address the additional statutory ground upon which the trial court terminated respondent’s parental rights. See Ellis, 294 Mich App at 32. 2 -4- MCL 712A.19b(5). This Court reviews for clear error the trial court’s decision regarding a child’s best interests. In re Medina, 317 Mich App 219, 226; 894 NW2d 653 (2016). When determining whether the termination of parental rights is in a child’s best interests, the trial court should weigh all the available evidence, and consider a variety of factors including the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality, the advantages of a foster home over the parent’s home, the parent’s compliance with the case service plan, the parent’s visitation history with the child, the child’s well-being in the foster home, and the possibility of adoption. White, 303 Mich App at 713-714. The trial court also should consider the child’s safety and well-being, including the risk of harm a child might face if returned to the parent’s care. See In re VanDalen, 293 Mich App 120, 142; 809 NW2d 412 (2011). In addition, the trial court must consider that a child is in relative placement at the time of the termination hearing; relative placement weighs against termination of the parent’s parental rights. In re Mota, ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 351830) (2020); slip op at 8. Further, the trial court is required to consider the best interests of each child individually. Olive/Metts, 297 Mich App at 42. Although the trial court need not make specific individualized findings regarding each child, if the interests of the individual children within a family significantly differ, the trial court should address those differences when determining the children’s best interests. White, 303 Mich App at 715. In this case, the trial court observed that the children were similarly situated and that the evidence established that termination was in the best interests of both children. The record supports this determination. Both children have special medical needs that require the care of a capable and dedicated adult. The evidence demonstrated that although respondent participated in services that were provided to enable her to meet the children’s medical needs, respondent did not benefit from the services and remained unable to appreciate and respond to the medical needs of the children. Respondent contends, however, that the trial court erred by failing to consider that AB is placed with a relative and also erred by finding that the children were similarly situated given that AB was placed with a relative and KK was placed in foster care. However, AB was placed with his biological father; a biological parent is not a “relative” as that term is defined in MCL 712A.13a(1)(j). In re Schadler, 315 Mich App 406, 413; 890 NW2d 676 (2016). The trial court therefore was not required to consider AB’s placement as a relative placement for purposes of determining his best interests, Mota, ___ Mich App at ___; slip op at 8-9; Schadler, 315 Mich App at 413, and likewise did not err by considering the children to be similarly situated. Affirmed. /s/ Michael F. Gadola /s/ Colleen A. O’Brien -5-
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