-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re W. HERZIG, Minor. October 6, 2016

No. 330918 Livingston Circuit Court Family Division LC No. 2011-013731-NA

Before: R IORDAN , P.J., and M ETER and O WENS , JJ.

P ER C URIAM

. Respondent-appellant (hereinafter “respondent”), mother of the minor child at issue, appeals as of right from an order of the family division of the circuit court terminating her parental rights to the child. 1 We affirm.

This case began with a petition filed when the child was appro ximately one month old. The attached allegations included a summary of respondent’s his tory with Child Protective Services (CPS), which had culminated in termination of her pare ntal rights to two children approximately 21⁄2 years earlier. The listing of current concern s set forth a recent term of incarceration, substanc e abuse, and mental health issues. The petition concluded with the recommendations that the child “be placed out of [the] home” an d that “parental rights . . . be terminated.” Respondent pleaded to many of the allegations in an amended petition, and the trial court assumed jurisdiction over the child.

Respondent challenges the court’ s assumption of jurisdiction w ith respect to her. “To properly exercise jurisdiction, th e trial court must find that a statutory basis for jurisdiction exists.” In re BZ & KZ , 264 Mich App 286, 295; 690 NW2d 505 (2004). This Court revie ws the trial court’s decision in that re gard “for clear error in light of the court’s findings of fact.” Id.

MCL 712A.2(b) sets forth the criteria for a court’s assumption of jurisdiction over a child in child-protection cases. Under subsection (b)(1), jurisdicti on is proper ov er a child

[w]hose parent or other person legally responsible for the car e and maintenance of the juvenile, when able to do so, neglects or re fuses to provide

1 The court also terminated the father’s parental rights, but he is not a party t o this appeal.-2- proper or necessary support, education, medical, surgical, or o ther care necessary for his or her health or morals, who is subject to a substantia l risk of harm to his or her mental well-being, who is abandoned by his or her parent s, guardian, or other custodian, or who is wit hout proper custody or guardiansh ip. . . .

Subsection (b)(2) authorizes a court to assume jurisdiction ove r a child “[w]hose home or environment, by reason of neglect , cruelty, drunkenness, crimin ality, or depravity on the part of a parent, guardian, nonparent adult , or other custodian, is an un fit place for the juvenile to live in.”

In child-protection cases,

[a]lthough the respondent s are free to admit the truth of the a llegations and relieve the prosecutor of the need to put forth proofs, the admissions do not establish the court’s jurisdiction. The court must make an independent deter mination of whether the allegations are sufficient to permit the court to a ssume jurisdiction over the matter. [ In re Youmans , 156 Mich App 679, 684-685; 401 NW2d 905 (1986).]

On appeal, respondent protests that almost the whole case agai nst her involved past events, most predating the child’s birth. Petitioner correctly retorts that, under the doctrine of anticipatory neglect or abuse, past events relating to how a pa rent treated a child is competent evidence for purposes of determin ing the court’s jurisdiction i n a new child-protection case. See, generally, In re LaFrance Minors , 306 Mich App 713, 730; 858 NW2d 143 (2014). Respondent’s admissions included her history with CPS, resultin g in termination of her parental rights to two children. She adm itted that she did not follow t hrough with certain services pertaining to the earlier CPS case. Significantly, she admitte d that she did not complete counseling and did not follow up wit h medication management for her mental health issues.

Respondent’s admissions relating to the time of the subject ch ild’s birth and afterward included that, when the petition was filed, she lived with the child’s father and with three other persons who were involved in criminality, CPS investigations, o r substance abuse, and at the time knew of the father’s criminal history as well as his outst anding warrants. Respondent further admitted that she had mental health issues as well as a history of substance abuse. Respondent acknowledged that she had been incarcerated for most of her pregnancy because of shoplifting, that she had diffi culty following medical advice a nd appeared anxious, and that she had been observed by hospital staff outdoors in her hospital go wn after having disconnected herself from an intravenous system and monitors. Respondent la ter clarified that she had been found outside wearing only her gown and with her “Foley bag” in tact, that the latter was “like a catheter,” and that “I had everything in me, my IVs, and everyt hing. I never disconnected everything and I took it with me. I walked outside and smoked. ” Respondent admitted that a nurse reported that respondent h ad been given instructions on h ow to bathe her newborn but did not do so properly, because she was “holding [the baby] over th e basin and the umbilical cord was wet[.]” Respondent additionally admitted telling a CPS wor ker upon the birth of the child that she was unemployed and had no income. Respondent acknowle dged that she had been diagnosed with “anxiety, depressi on, severe bi-polar, borderlin e personality, and ADHD,” for which she was prescribed several medications. Nevertheless, re spondent agreed that recent drug screens were negative for all substances, including prescriptio n medicines. She admitted-3- reporting that she was not taking her medications because of pr egnancy and breastfeeding, but later stated that she was not breastfeeding.

A CPS worker testified at the plea hearing that she had learne d during her investigation that respondent and the father had no income to support the chi ld and no safe, stable housing. The worker also testified that respondent had been suicidal in December 2013.

We find no clear error in the t rial court’s finding that “the factual basis for the plea is established by testimony of . . . [the] parents and the [CPS] w orker.” The doctrine of anticipatory neglect was highly relevant in this case, where re spondent lost her parental rights to other children in part because of a failure to address her ment al health issues. Further, respondent had current and serious mental health issues that we re not being properly treated. In addition, she had recently spent a significant period in jail, she admitted an absence of employment and income, and she resided with persons with troubl esome issues. At a minimum, due to respondent’s past and pres ent issues, the child was “sub ject to a substantia l risk of harm to his or her mental well-bei ng,” MCL 712A.2(b)(1), and had an unf it home, MCL 712A.2(b)(2).

Respondent argues that there was no basis for removing the chi ld from the home under MCL 712A.14b. 2 Contrary to respondent’s argument, she did not preserve this issue below; she made no objections to the issuan ce of the removal order. We re view unpreserved i ssues for plain error affecting substantial rights. In re Utrera , 281 Mich App 1, 8; 761 NW2d 253 (2008).

Respondent focuses her argument on the language in MCL 712A.14 b indicating that an emergency removal pending a preliminary hearing can take place only if immediate removal is necessary to protect the child. She emphasizes that CPS worker s allowed the child to live in respondent’s home for approximately three weeks before removing him, stating that “waiting nearly three weeks to take action . . . makes a mockery of the concept of an emergency.” We find no plain error on this record, for three independent reaso ns. First, according to respondent, the child was removed on Feb ruary 12, 2015. The initial petiti on stated, along with various other allegations, that petitioner received, on that date (February 1 2, 2015), notes from a social worker regarding respondent’s purported decision to breastfeed the chi ld. This was important because it intertwined with respondent’s nee d to take psychiatric medicati on. 3 It is plausible that this information was the final straw that pushed petitioner to take action regarding the emergency removal. 4 Second, respondent herself admitted during the preliminary ex amination that workers for petitioner had told her tha t they were performing an invest igation before deciding whether to remove the child. This was a reasonable decision on the part o f the workers. Finally, merely

2 We note that the preliminary hearing commenced less than 3 1⁄2 h ours after the court made the MCL 712a.14b removal ruling.

3 Respondent stated that “they didn’t want me to breastfeed” bec ause of her need to take medication.

4 Respondent reported bottle-feeding the child on February 7, 20 15, but there was, at least initially, a dispute over this i ssue, in light of the social wo rker’s report.-4- because removal may have been warranted even earlier does not a utomatically mean that the removal that did occur was unwarranted. Given respondent’s his tory and current issues, the removal decision was reasonabl e and no plain error is apparent.

Respondent next argues that the trial court erred in finding g rounds to terminate respondent’s parental rights. An appellate court “review[s] fo r clear error . . . the court’s decision that a ground for termination has been proven by clear and convincing evidence . . . .” In re Trejo Minors , 462 Mich 341, 356-357; 612 NW2d 40 7 (2000), superseded in par t by statute on other grounds as recognized by In re Moss , 301 Mich App 76, 83 (2013); 836 NW2d 182 (2013). “Clear error exists when some evidence supports a find ing, but a review of the entire record leaves the reviewing court with the definite and firm co nviction that the lower court made a mistake.” In re Dearmon , 303 Mich App 684, 700; 847 NW2d 514 (2014). This Court must give regard to the trial court ’s special opportunity to observe the witnesses. Id

. MCL 712A.19b(3)(j) provides:

(3) The court may terminate a parent’s parental rights to a c hild if the court finds, by clear and convinc ing evidence, 1 or more of the following:

* * *

(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.

The trial court had before it the pertinent information regard ing respondent’s prior CPS case that resulted in the termination of her parental rights to two other children. In that case, respondent demonstrated a serious problem with illegal drugs an d problems with her mental health. She failed to make meaningful progress with services, and the trial court found a reasonable likelihood that the ch ildren would be harmed if retu rned to her care. In the present case, at the hearing on December 14, 2015, a foster-care worker , Shayna Chapman, testified that even though respondent had been prescribed medication for her m ental health, she had many drug screens that tested negative for all substances. Chapman explained that this “raised [a concern] that . . . she wasn’t taking the medication as prescri bed[.]” Chapman also stated that respondent missed multiple screens and had not presented for a random screening since August 2015. In addition, respondent failed to follow the recommendat ions made after a psychological evaluation. According to Chapman, respondent claimed that she was involved in individual counseling, but could only provide the first name of the counse lor, did not state where the counselor worked, and provided no documentation related to this counseling. Chapman further stated that respondent was not able to “take the cues from the baby” during parenting time and had missed a medical appointment for the child. Respondent had expressed an interest in online parenting classes but nev er followed up on it.

At the continued hearing on D ecember 15, 2015, Chapman testifi ed that in the earlier CPS case, respondent’s parental rights had been terminated “bec ause of serious and chronic-5- neglect.” Chapman stated that, in the present case, there was a reasonable likelihood that the child would be harmed if return ed to respondent’s care.

Given respondent’s CPS history, her failure to make progress w ith services in the prior case, her current mental health problems and failure to comply with treatment plans, the issues with her drug screenings, and the issues during parenting time, the trial court did not clearly err in finding that petitioner established the basis for terminatio n set forth in MCL 712A.19b(3)(j) by clear and convincing evidence. “Only one statutory ground f or termination need be established,” In re Olive/Metts Minors , 297 Mich App 35, 41; 823 NW2d 144 (2012), and we therefore do not need to addre ss the additional grounds cited b y the trial court. 5

Respondent argues that the trial court erred in determining th at termination was in the child’s best interests. An appellate court “review[s] for clea r error . . . the court’s decision regarding the child’s best interest[s].” In re Trejo Minors , 462 Mich at 356-357.

“If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests , the court shall order termination of parental rights and order that a dditional efforts for reunifica tion of the child with the parent not be made.” MCL 712A.19b(5). In explaining its best-interests determinatio n, the trial court noted that the child was 11 mont hs old and doing very well in f oster care. The court additionally noted that respondent had failed to comply with her service pla n and had a “demonstrated inability” to put the needs of the child before her own. The c ourt further stated that it was not in the child’s best interests “to spend years in foster care to se e when or even if his parents can be rehabilitated.”

In arguing this issue, responde nt does not attack these specif ic findings, but, consistent with how she framed this issue in the statement of questions pr esented for appeal, instead complains that she was stripped of her ability to establish a b ond with the child because he was taken from her when only one month old. At issue, however, is whether the court correctly assessed the child’s best interest s, not whether the circumstan ces of the child’s removal disrupted respondent’s rights. Respondent is essentially asserting that, because she was deprived of an opportunity to establish a bond with the child, it was impossib le to evaluate what sort of bond may have come about. However, respondent cites no authority fo r the proposition that a court cannot determine best interests in connection with a parent who , for whatever reason, has had no opportunity to establish a bond with a child.

Because respondent’s argument leaves unchallenged the court’s pertinent best-interests findings, respondent has failed to show that the trial court cl early erred in concluding that termination of her parental right s was in the child’s best inte rests.

5 We nevertheless briefly note that the record clearly and amply supported termination under MCL 712A.19b(3)(i), and respondent ’s argument pertaining to thi s subsection’s constitutionality is unavailing.-6- Affirmed.

/s/ Michael J. Riordan /s/ Patrick M. Meter /s/ Donald S. Owens