In re L. D. RIPPY, Minor.
Wayne
Circuit Court Family Division LC No. LC No. 18-001527-NA
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 and
custody for the child), and MCL 712A.19b(3)(j) (there is a
reasonable likelihood that 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. 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
premature at 32 weeks and 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 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
there were statutory grounds for terminating her parental
rights. Rather, she argues that the trial court erred in
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). MCL 712A.19a(2)(a) states that
reasonable efforts 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." 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), (1), (m), or (n);
(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 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." Based on these
medical issues, the trial court concluded that LR was a
medically fragile child that would require special and
life-long 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, life-long, 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 below, the trial
court also concluded that termination was in LR's best
interests.
Based
on its stated findings, the trial court satisfied the
requirements of MCR 3.977(E) to terminate respondent's
rights at the initial dispositional hearing. Also, it is
clear based on its stated findings that the trial court
determined that LR 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.19b(2)(a), reasonable efforts were not required, 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
such an 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, the court can order a
guardianship only if it "determines that [doing so] is
in the child's best interests[.]" MCL
712A.19a(9)(c). Here, 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. Thus, 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 erred by finding that termination
of her parental rights was in LR's best interests. We
disagree.
"Once
a statutory ground for termination has been proven, the trial
court must find that termination is in the child's best
interests before it can terminate parental rights."
In re Olive/Metts, 297 Mich.App. 35, 40; 823 N.W.2d
144 (2012). "We review for clear error the trial
court's determination regarding the children's ...