-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re KOZLOWSKI, Minors. July 12, 2016

Nos. 330043, 330044 Livingston Circuit Court Family Division LC No. 14-014681-NA

Before: O WENS , P.J., and B ORRELLO and O’B RIEN , JJ.

P ER C URIAM

. In this consolidated appeal, respondent mother (Docket No. 330 043) and respondent father (Docket No. 330044) both appeal the order of the trial c ourt terminating their parental rights to their minor children DAK, DEK, and JK, under MCL 712A .19b(3)(c)( i ) (conditions that led to adjudication continue t o exist), MCL 712A.19b(3)(g) (fai lure to provide proper care and custody), and MCL 712A.19b(3)(j) (r easonable likelihood of harm ). For the reasons set forth in this opinion, we affirm.

I. FACTUAL BACKGROUND

Respondents were married in March of 2008. Both respondents a cknowledged that their relationship was tumultuous at times and that there were severa l break ups. Respondent mother gave birth to twins JK and RK shortly before the initiation of these proceedings. Respondent father was not their biological father but he indicated his des ire to raise them as his children. The twins were both born prematurely and with respiratory issue s. At that time, respondent mother smoked about a half a pack of cigarettes a day and respo ndent father smoked about two packs a day. On March 3, 2014, respondents were separated and respondent mother was told that she, DEK, JK, and RK had to leave her brother’s place 1 because her brother’s girlfriend did not want to be around the children. She testified that she wen t to stay with her cousin that evening because she had no place else to go but that she planne d to go to either her mother’s or grandmother’s the next day. Respondent mother acknowledged tha t her cousin’s house was filthy; there was pet litter th roughout, mildew on dishes and t he toilet, and tobacco covering the kitchen table. Respondent mother further acknowledged that thr ee to four adults were living and smoking in the house. She and the three children slept on the sofa that evening. In the morning,

1 DAK was staying with respondent fat her’s parents in Florida.-2- RK was found unresponsive and was unable to be resuscitated by paramedics. Respondent father, who was staying with a f riend in Flint, claimed that if he had known that respondent mother and the children were going to stay in that house that e vening, he would have found a different place for them to stay.

Upon RK’s death, DEK and JK were taken into protective custody . DAK was returned from Florida and placed in protec tive custody with his siblings

. Respondent father entered a pl ea on April 4, 2014 and acknowle dged that he had ADHD and had not been taking his medication. Respondent mother ente red a similar plea on May 13, 2014, also acknowledging that she had ADHD and had not been tak ing medication. The trial court accepted both pleas finding that grounds for adjudication had been met because there was a substantial risk of harm to the children due to an unfit home b y reason of neglect and depravity. Both respondents participated in psychological evaluations in A pril of 2014 that identified mental health concerns as a barrier to reunification. Responde nt mother also testified that respondent father had a history with alcohol and marijuana, and respondent mother tested positive for marijuana early on in the case. Around the time o f adjudication, respondents were separated and both lacked stable housing, simply sleeping at th e homes of friends or family. At one point, respondent father went to Caseville and claimed that he performed some work at a campground there but provided no documentation. Both responden ts relied either on friends or on the public bus system to attend parenting times.

Respondents’ initial caseworker, Patricia Galea, testified to meeting with both respondents and identifying the barriers to reunification as be ing issues with housing, respondent father’s substance abuse, income, parenting skills, and their r elationship with each other. Galea stated that she gave respondent mother information on housing a ssistance but she did not follow through. Galea indicated that res pondents were inconsistent inattending parenting times. Galea testified that she referred res pondent father for a substance a buse assessment but he did not attend.

In the fall of 2014, respondent father moved back from Casevil le and reunited with respondent mother. Around that time Stephanie Langham became r espondents’ case worker. Langham was able to move parenting times closer to where respon dents were living and ensured that they were provided with bus passes and gas cards to aid in their attendance at parenting times. Langham acknowledged that the foster family cancelled anumber of visits due to the children’s illnesses. Respondents both testified that these ca ncellations made it harder for them to find transportation to future visits. Nonetheless, Langham testified that respondents had consistent visits while she was the case worker. Around this t ime respondents quit smoking cigarettes and began us ing e-cigarettes.

During a hearing on January 27, 2015 the trial court ordered L angham to file a termination petition at the request of the lawyer-guardian ad l item. Langham later testified that she therefore did so but did not personally believe that termin ation of parental rights was warranted at that point. The termination hearing was set for A pril of 2015 but was adjourned due to respondents having secured housi ng and maintained semi-stabl e employment. Specifically, respondents had begun sub-leasing a room in a house that was pr imarily rented by James Clark. Langham and another caseworker, Jahada Turner, testified that t he house was appropriate for-3- children. Turner indicated that she performed a background che ck on Clark and that it did not reveal any criminal history. Respondents submitted conflicting documentation regarding the amount of rent they were to pay each month, at one point submit ting receipts stating that rent was $200 and at a later point submitting evidence of a purporte d lease agreement that stated rent was $250 a month. Respondents did notproduce Clark’s lease wi th his landlord.

Respondent father obtained a siz eable settlement check in Apri l of 2015 based on a 2012 accident. With this money, he purchased a vehicle and obtained insurance for it. By early summer, he testified, he had obtained employment that required him to work long hours six days a week and earned over $500 a wee k. However, the only document ation of his employment given to caseworkers was a $250 pay stub, and he acknowledged t hat this job would only keep him employed during the summer months.. He testified that he a nd respondent mother received over $300 a month in food stamp assistance. Respondent mother testified that she was receiving $20 a day from an insurance company to take care of respondent- father on account of a second accident that he had been involved in.

Respondents both testified to gen eral knowledge of their child ren’s medical conditions, such as breathing problems and surgeries. Respondent mother pr ovided more detail but also stated that none of her children had “special needs,” contrary to Galea’s testimony that all the children had “special needs.” A dditionally, respondent mother was not able to provide detailed information about her children’s current immunization status or mental health services. Respondents both testified that t hey asked questions of casewor kers, doctors, and the foster parents but did not receive res ponses. Regarding activities, r espondents both testified that they were not informed of DAK’s participation in baseball and DEK’s participation in gymnastics. Langham corroborated respondents’ testimony that the foster par ents did not always provide information regarding the children’s appointments. However, re spondents acknowledged that they were present for several surgeries and hospital stays that the children had during the pendency of the case.

Galea, Langham, and Turner stated that respondent father had e ither missed drug screens or had positive screens. Langha m testified that respondent mot her had missed so me drug screens as well. Turner stated that res pondent father used work as an excuse but did not provide her with work schedule verification. Respondents testified that they ha d emotional bonds with their children that were displayed during parenting times. Responden ts testified to being upset when they learned from their children that they had been directed to refer to their foster parents as mom and dad.

A three-day termination hearing was held before a referee in J uly, August and September, 2015. At the termination hearing, Turner testified that one of the biggest barriers that remained unresolved was respondents’ menta l health issues. Turner speci fically stated that respondent mother had missed a lot of her therapy appointments. Responden t father acknowledged that his psychological evaluation recomme nded counseling; he requested a specific provider that petitioner was unable to pay for . Both respondents attended an d completed parenting classes. However, Turner testified that after July of 2015 respondents s topped engaging with services altogether.-4- Despite testifying that he made over $2,000 a month in his pre sent job and he and respondent mother were receiving over $300 a month in food stam ps, respondent father testified that he had only a little over $500 in savings at the bank evenwith the couple’s largest monthly expense being the $200 or $250 they paid Clark in rent. Respon dent father testified that he had more money entrusted to family members.

Langham did not believe that termination was appropriate becau se respondents had secured housing and because respondent father had secured a job with stable income. Turner disagreed. Turner focused on the lack of progress towards resp ondent’s mental health goals. Turner was also concerned about the evidence of stability regar ding respondents’ housing situation. While acknowledging that there was no evidence sugg esting that respondents would be unable to reside with Clark long-term, Turner was bothered b y the fact that respondents did not have a contingency plan and were unable to provide a copy o f Clark’s lease with the primary landlord. Turner testified that the children were in need of s tability and permanency. Turner stated that it was unlikely res pondent-mother would be able to resolve her mental health issues in six months’ time and that the ch ildren could not wait that long for stability and permanence.

The referee issued a written recommendation on October 13, 201 5 terminating respondents’ parental rights. The referee first found that gro unds for termination existed under MCL 712A.19b(3)(c)( i ), stating that the conditions tha t led to adjudication were th e death of RK and a longstanding history of neg lect due to lack of housing, u nstable mental health, and substance abuse. The referee found that neither parent had com plied with drug testing, and that it was problematic that respondents and Langham believed that t he only barriers to reunification were a job and a house. The ref eree believed Turner’s testimon y that emotional stability and substance abuse were also barriers. The referee found that the documentation provided to make their housing situation seem stabl e was inadequate because ther e were conflicting amounts of rent on the various documents. The referee was also troubled b y the fact that, despite appearing to have sufficient income, mother still needed the department o r Wellspring to provide her with a bus pass.

The referee next found grounds f or termination under MCL 712A. 19b(3)(g), noting respondents’ failure to follow th rough with the counseling reco mmended by their psychological evaluations and that mother’s attendance was dismal and father demanded a certain provider that petitioner had no means to fund. The referee also was troubled by mother’s belief that RK died of SIDS, describing this as a failure to internalize the change s that she would be required to make.

The referee also found grounds for termination under MCL 712A. 19b(3)(j). The referee noted that RK died in the care of respondents, noted mother’s d ecision to stay in the crowded, smoke-filled, and filthy home and that father made no effort to know of the condition in which his children were living that evening, and noted lack of income and untreated mental health as indications that the children w ould be at risk if returned.

Finally, the referee concluded that termination was in the bes t interests of the children. The referee acknowledged that the children and parents had a bo nd, but found that respondents’ problems with substance abuse and mental instability showed tha t they could not provide a safe-5- and stable home. The referee also focused on the parents’ lack of knowledge regarding the children’s needs.

The trial court entered an orde r adopting the referee’s recomm endation to terminate parental rights and ordered res pondents’ parental rights termin ated on October 14, 2015. These appeals ensued.

II. STANDARD OF REVIEW

This Court reviews “for clear error both the trial court’s dec ision that a ground for termination of parental rights has been proved by clear and con vincing evidence and, where appropriate, the court’s decision regarding the child’s best in terests.” In re JK , 468 Mich 202, 209; 661 NW2d 216, reh den 468 Mich 1239 (2003); MCR 3.977; In re Olive/Metts Minors , 297 Mich App 35, 40; 823 NW 2d 144 (2012). A decision is clearly er roneous if “the r eviewing court on the entire evidence is left with the definite and firm convi ction that a mistake has been made.” In re JK , 468 Mich at 209-210.

III. ANALYSIS

On appeal, respondents each argue that the trial court imprope rly considered their failure to participate in mental health and substance abuse services as evidence of neglect when, according to respondents, mental health and substance abuse wer e not issues that led to the initial adjudication. Respondent father al so argues that petitioner fa iled to provide ade quate services. Respondents also each argue that the trial court erred in its d etermination that statutory grounds for termination of parental ri ghts existed. Finally, responden t mother argues that termination of her parental rights was not i n her children’s best interests.

A. SERVICES

Respondents argue that their failure to participate in certain mental health and substance abuse services that they believe were not necessary to rectify conditions that led to adjudication should not have been used as evidence of neglectful behavior or as evidence that they failed to rectify the conditions that led to adjudication. Respondent fa ther also argues that adequate services were not provided. However, a review of the record in dicates that there was ample evidence for the trial court to conclude that respondents’ ment al health and substance abuse were issues at the initia l adjudication and tha t petitioner offered father adequate services.

Both respondents acknowledged having untreated ADHD at their p leas. Both acknowledged that their April 2014 psychological evaluations re vealed mental health concerns. Respondent mother testified that respondent father had past pro blems with alcohol and marijuana, and Galea reported that respondent mother had an ear ly positive test for marijuana. While issues with housing, income, tobacco use, and transportat ion were issues that resulted in respondent mother being in the home with the children where RK died, it appears that respondents’ mental health and substance abuse issues were unde rlying causes of some of these concerns and even primary concer ns themselves. The trial court did not err in determining that respondents’ failure to adequate ly participate in mental healthservices or drug screens was-6- evidence of a failure to provide p roper care and c ustody and ev idence that the conditions that led to adjudication had not been remedied.

Father also contends that petitioner failed to offer adequate services when it would not pay for counseling services for him and that he was required to obtain his own private insurance. This argument lacks merit.

Prior to termination, petitioner must show that reasonable eff orts were made to “rectify the conditions that led to its involvement in the case.” In re Terry , 240 Mich App 14, 25-26; 610 NW 2d 563 (2000). If a case service plan “fails to take into a ccount the parents’ limitations or disabilities and make any reasonable accommodations, then it ca nnot be found that reasonable efforts were made to reunite the family.” Id. at 26. “The reasonableness of the efforts provided affects the sufficiency of the evidence supporting the grounds for termination.” In re Hicks/Brown , ___ Mich App at ___; ___NW2d_ __ (2016) (Docket No. 328870) sl ip op at 6.

What father appears to be referring to is that petitioner was unable to pay for his specific choice of provider. Father indicated that he had been requesti ng to see a specific provider, “Taylor Psychological.” Langham clarified that petitioner woul d not pay for the specific provider that father wanted for his therapy. The trial court w as correct to note that while petitioner “has a responsibility to expend reasonable efforts t o provide services to secure reunification, there exists a co mmensurate responsibility on th e part of respondents to participate in the services that are offered.” In re Frey , 297 Mich App 242, 248; 824 NW2d 569 (2012). There is sufficient evidence in the record to show that father, despite requesting a specific provider for his counseling, failed to participate in the servi ces that were offered. Galea testified that father did not go for a substance abuse assessment despite a referral. Langham testified that father was not consistent with substance abuse drops. Turner t estified that father was not consistent with drug screens and that, despite using work as an excuse, did not provide her with a work schedule verification.

In short, petitioner made reason able efforts to “rectify the c onditions that led to its involvement in the case.” In re Terry , 240 Mich App at 25-26.

B. STATUTORY GROUNDS FOR TERMINATION

Respondents argue that the court erred in finding statutory gr ounds for termination. We disagree.

The trial court first found termination was proper under MCL 7 12A.19b(3)(c)( i ), which provides that termination is app ropriate if the conditions that led to the initial adjudication continue to exist 182 days after the initial dispositional orde r and “there is no reasonable likelihood that the conditions will be rectified within a reaso nable time considering the child’s age.” The conditions that the trial court determined led to ad judication that continued to exist were housing, income, mental health, and substance abuse. Resp ondents did make concerted efforts to rectify the issues of housing and income. They had maintained a suitable living environment for a significant duration at the time of the termi nation hearing. However, evidence about this arrangement’s stability was conflicting. Respondent s were subleasing and the primary tenant’s lease was never verif ied. There was conflicting evide nce on the amount of money-7- respondents had to pay Clark each month. While there was no ev idence definitively suggesting that the arrangement was unstable, we are not left with a defin ite and firm conviction that the trial court mistakenly questioned its stability in light of res pondents’ failure to have a contingency plan and Galea’s testimony that she had given respo ndent mother information on housing assistance when the case began in early 2014 and mother had not followed through with that information. Given this conflicting evidence, we cannot s ay that the trial court clearly erred in finding that housing remained an issue at the time of termin ation and that it was unlikely to be rectified within a reasonable amount of time.

Regarding income, respondents both testified that respondent f ather was earning about $2,000 a month. However, the evidence concer ning father’s inco me was even more tenuous than the evidence regarding housing. Respondents only provided one pay stub to case workers and the pay stub did not substantiate father’s purported earnings a nd father acknowledged that the job would only last until the end of summer. Additionally, despite stating that they only had to only pay $200 or $250 in rent per month and that they were receiving over $300 a month in food stamp assistance while father was making over $500 a week, resp ondents both reported only having $550 in savings. Respondent father testified that vario us family members were holding his money for him but he was vague on specifics. Furthermore, there was a history of father and mother separating and mother had not obtained suitable income t o provide for the children in the event of another separation. On this record, we are not left w ith a definite and firm conviction that the trial court erred in c oncluding that unstable income r emained an issue at the time of termination and that there was no reasonable likelihood that it would be corrected within a reasonable amount of time.

Mental health and substance abuse were also issues that remain ed at the time of termination. Respondent mother had missed appointments, and re spondent father had insisted on a certain provider that petitione r could not pay for. Both par ties were inconsistent throughout the case with drug screens, and res pondent father did not attend a substance abuse assessment despite being referred. The tri al court’s conclusion that ment al health and substance abuse were concerns that caused adjudicat ion and had not been rectified wa s not clearly erroneous.

In short, the trial court did not clearly err in finding groun ds for termination under MCL 712A.19b(3)(c)( i ). Because we have found one statutory ground for termination, we need not consider the additional grounds cited by the trial court. See In re HRC , 286 Mich App 444, 461; 781 NW2d 105 (2009).

C. BEST INTERESTS

Finally, respondent mother cha llenges the trial court’s best i nterest determination.

“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 reunification of the child with the parent not be made.” MCL 712A.19b(5). The trial court must find by a pre ponderance of the evidence that termination is in the best interests of the children. In re White , 303 Mich App 701, 713; 846 NW2d 61 (2014). “[R]egard is to be given to the special opport unity of the trial court to judge the credibility of the witnesses who appeared before it.” In re Miller , 433 Mich at 337. The-8- children’s bond to the parent, t he parent’s parenting ability, and the children’s need for permanency, stability, and finality are all factors for the court to consider in deciding whether termination is in the best interests of the children. In re Olive/Metts Minors , 297 Mich App at 41-42.

The trial court determined that there was a strong bond betwee n mother and the children but concluded that termination was still in the children’s best interests. It found that the lack of ability to understand the children’s special medical needs, the inability to sufficiently benefit from services, and the children’s need for permanence and stabi lity indicated that termination of parental rights would be in the children’s best interests. Whi le there is some indication that respondent mother’s lack of infor mation regarding the children’ s medical conditio ns was partly attributable to the lack of co mmunication provided by the foste r family, the trial court correctly noted that respondent mother had been present at a surgery wher e she could have obtained more information. Furthermore, a caseworker testified that there wa s a history of medical neglect when the children were in mother’s care; and, despite one of th e children having respiratory problems, both father and mother continued to smoke. In contra st, all of the children’s medical needs were being addressed in foster care. Moreover, there was evidence that respondent mother had not adequately addressed her mental health issues. Additio nally, that the children needed permanence and stability was supported by Turner’s testimony th at the existing problems could not be rectified in six months’ time and that the children coul d not wait that long. In short, the trial court did not clearly err i n finding that termination of mother’s parental rights was in the children’s best interests. In re Olive/Metts Minors , 297 Mich App at 41-42.

Affirmed.

/s/ Donald S. Owens /s/ Stephen L. Borrello /s/ Colleen A. O'Brien