Mother’s ‘Too Small’ Living Arrangement Is Insufficient Reason To Terminate Her Rights
The allegation that an extended-stay motel room was “too small” for the respondent-mother to live in with her child and the child’s father was insufficient grounds for terminating her parental rights, the Michigan Court of Appeals has ruled in a published opinion.
“Although we have little doubt that the housing was not ideal, ideal is not the standard,” a Court of Appeals majority said in In re K. M. Brown, Minor (Docket No. 371986). The motel room “was deemed to be safe and appropriate” and “even if a bit cramped,” the record was “devoid of evidence” suggesting the motel room could not accommodate the minor child, KMB.
The respondent-mother “did not show perfect adherence to her [case] service plan, but she did show consistent benefit from that plan,” the Court of Appeals majority wrote. “A fair reading of the record confirms that housing was the primary concern throughout the proceedings, and … the [Department of Health and Human Services] must show more in terms of deficiency beyond the bare assertion of inadequate size of the living space. For example, does the small size preclude adequate feeding, sleeping, playing, or other aspects of a healthy childhood? The record shows none of this.”
Therefore, “the trial court’s order of termination is vacated, and the matter is remanded to the trial court for further proceedings consistent with this opinion,” the Court of Appeals majority held.
Judge Brock A. Swartzle wrote the published opinion, joined by Judge Kristina Robinson Garrett.
Judge Kirsten Frank Kelly dissented. “I completely share the majority’s concern with respondent-mother’s housing serving as a basis for termination given the lack of any detail or evidentiary foundation to explain why the motel she resided in was inadequate,” she wrote. “However, separate from the housing issue, I believe that the trial court properly found a statutory ground for termination under MCL 712A.19b(3)(c)(i) ….”
Background
The Department of Health and Human Services (DHHS) filed a petition in Wayne County Circuit Court to remove KMB from the respondent-mother and terminate her parental rights. The petition alleged that KMB had tested positive for marijuana at birth and so the trial court removed KMB from the respondent-mother’s care. The respondent-mother pleaded no contest to the allegations in the petition and the trial court took jurisdiction over KMB. After the respondent-father established paternity, the DHHS filed a supplemental petition seeking jurisdiction over him, and he pleaded to the allegations in the petition.
At a dispositional hearing, the trial court ordered the respondent-mother to: obtain and maintain suitable housing and income; complete a psychological exam; participate in parenting classes; maintain communication with agency personnel; engage in visitation; participate in individual therapy with an anger management or domestic violence component; complete a substance use assessment; and complete random drug screenings. The trial court also gave the DHHS discretion to allow unsupervised visits between the respondent-mother and KMB.
During subsequent reunification efforts, the respondent-mother was employed and maintained contact with the foster-care worker. It was noted the respondent-mother had “completed and benefited from” parenting classes and was “partially in compliance” with visitation, therapy and housing. “Although she was only partially compliant with drug screenings, her work schedule prevented her from getting to the screening facility before that facility closed. The screenings that respondent-mother had completed were positive only for tetrahydrocannabinol (THC).”
Throughout the proceedings, the DHHS identified housing as the “main concern” for any non-compliance with the case service plan. The respondents were initially living in the respondent-father’s mother’s home, “which had safety issues.” The respondents later relocated to an extended-stay motel. The DHHS identified the motel as “being safe and appropriate for unsupervised visits, but not appropriate for overnight visits or reunification because of its small size.” It was further noted the respondent-mother “was loving and affectionate toward KMB during visits” and that she had “bonded” with KMB. “While her attendance was not perfect, respondent mother consistently participated in visits with KMB, including unsupervised ones.”
A January 2023 report to the trial court indicated the respondent-mother was only non-compliant with the case service plan when it came to housing. At an April 2023 hearing, the referee pointed out the respondents were still living in the motel room. Otherwise, the referee observed the respondents “were … compliant with the parent-agency agreement.” In the meantime, the respondent-mother maintained employment and continued to have unsupervised visits with KMB.
Soon after, the foster-care worker requested that visits be supervised. She indicated that DHHS was going to file a supplemental petition seeking termination of parental rights because the respondents “did not have suitable housing and were not consistently taking drug screenings.” She stated the motel was “suitable to bring a child to, but not for like an overnight visit” because it was “too small.” She also noted there was an alleged domestic violence incident between the respondents, although KMB was not present and the police were not involved. As a result, the trial court ordered that visits be supervised and changed the permanency plan to adoption based on the motel room “being too small, the ‘recent incident of domestic violence,’ respondent-father testing positive for cocaine, and the length of time since removal.”
The DHHS subsequently filed a petition seeking termination of both respondents’ parental rights under MCL 712A.19b(3)(c), (g) and (j). During the proceedings, the foster-care worker asserted the motel room “was safe and appropriate for unsupervised visits, but it was not appropriate for reunification because of its relatively small size.” She noted that she had provided housing resources to the respondents and had offered to help them with the application process. According to the foster-care worker, the respondent-mother had said that she did not have money for a security deposit and the respondents had previously reported finding alternative housing, but did not move or follow-up with the resources they were given.
The respondent-mother testified in opposition to termination, maintaining that she had a strong bond with KMB. Regarding housing, she explained that she “was trying to move into a new residence, but she was waiting for some repairs to be completed.” She stated that she “could afford the residence without respondent-father because it was cheaper than the motel room, for which she was paying $250 per week.” She further disputed that the DHHS had helped her find a new residence. She claimed that she had contacted the services that the DHHS had suggested “but none of them panned out.” As for the motel room, she asserted that if she “were permitted to take home KMB that day, she could care for him, including putting a toddler bed in the motel room” and that she “had a refrigerator and could cook meals, and she had toys and clothes already for KMB.”
The trial court ultimately found clear and convincing evidence to support the termination of the respondents’ parental rights under MCL 712A.19b(3)(c)(i), (g) and (j). The trial court explained that: 1) KMB had been removed from the respondent-mother nearly three years earlier and that this was “a long time for a child to be languishing in foster care,” 2) domestic violence was one of the bases for jurisdiction but the respondents were “still spending a fair amount of time together” and “there was tension between them during visits with KMB” and 3) housing “[was] a substantial issue.”
The trial court also ruled that termination was in KMB’s best interests. In particular, the trial court pointed to no change in housing and the respondent-mother’s positive drug screens since the previous hearing. According to the trial court, “nothing significant really has changed” throughout the case and “KMB was entitled to permanency and stability.” The trial court held that reasonable efforts toward reunification had been made and entered an order terminating the respondents’ parental rights.
The respondent-mother appealed. (The respondent-father did not appeal.)
No Grounds For Termination
In its opinion, the Court of Appeals addressed each statutory factor – MCL 712A.19b(c)(i), (g), and (j) – that the trial court said supported terminating the respondent-mother’s parental rights.
Regarding MCL 712A.19b(c)(i), “It is undisputed that more than 182 days elapsed from the issuance of the initial dispositional order in September 2021 to the termination proceedings in March 2024,” the Court of Appeals stated. “The trial court originally assumed jurisdiction over respondent-mother because of domestic violence, substance use, and improper supervision. Although the trial court ordered respondent-mother to obtain and maintain suitable housing, housing was not a basis for the trial court taking initial jurisdiction over respondent-mother.”
Pointing to the alleged domestic violence incident, the Court of Appeals said the trial court “did not … order separation of, or no contact between, respondents. Instead, throughout most of the proceedings, the parties were working toward reunifying KMB with both respondents, with the trial court’s acknowledgment. At no point was respondent-mother ordered to separate from respondent-father as a condition of her reunification. And as for any domestic abuse against respondent-mother, such incidents alone are not proper grounds for termination. … [T]here is not clear-and-convincing evidence on this record that there was ongoing violence that warranted termination, particularly when KMB was not present during the April 2023 incident.”
As to the respondent-mother’s substance abuse, the Court of Appeals said her positive screen for cocaine “after the statutory grounds determination is not particularly relevant when reviewing whether that determination itself was supported by sufficient evidence. Accordingly, the trial court clearly erred by finding that there were grounds to terminate respondent-mother’s parental rights under MCL 712A.19b(3)(c)(i).”
Next, the Court of Appeals turned to MCL 712A.19b(3)(g), which says a ground for termination exists if “[t]he 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.” Here, the trial court “did not articulate any ground or analysis for terminating respondent-mother’s parental rights under MCL 712A.19b(3)(g), and for this reason alone, the trial court committed clear error ….”
The Court of Appeals then examined MCL 712A.19b(3)(j), which says a trial court may terminate rights if it finds by clear and convincing evidence there “is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if … returned to the home of the parent.” Here, the trial court’s findings “are not particularly clear on the reasonable likelihood of harm to KMB,” the Court of Appeals observed. “The trial court repeatedly identified housing as a barrier for reunification, and the record confirms that housing was a – if not the – trial court’s primary justification for termination. But there is little in the record explaining precisely why the motel room was inadequate. The DHHS found the living space to be generally safe and appropriate for the parents’ unsupervised visits with KMB. With respect to living there, however, the DHHS deemed the space too small for KMB. But other than a bare assertion, the DHHS did not actually demonstrate in the proceedings below or on appeal that the size of the motel room alone justified removal.”
Moreover, the respondent-mother “provided unrebutted testimony that she had sufficient space for a toddler bed, she could cook meals, and she had toys and clothing for KMB,” the Court of Appeals said. “On this record, it is unclear why the extended-stay motel room was not appropriate, even if the room size might not have been ideal.”
Regarding other aspects of the case service plan, the respondent-mother’s participation “was not always consistent, but it was generally positive,” the Court of Appeals emphasized. The respondent-mother “engaged in therapy and parenting classes, and she had many positive, unsupervised visits with KMB. Other than tests she missed because of her employment, respondent-mother did not test positive for any substance of concern at the statutory-grounds stage. As for any domestic abuse, … the record does not show that there was a reasonable likelihood of harm to KMB.”
Based on the foregoing, “the trial court clearly erred in finding that statutory grounds existed for termination of respondent-mother’s parental rights to KMB under MCL 712A.19b(c)(i), (g), or (j),” the Court of Appeals concluded. “There was not clear-and-convincing evidence to support any of the three identified grounds. Because a statutory ground is a necessary condition for termination of parental rights, we need not consider respondent-mother’s alternative arguments on reasonable efforts or best interests.”
Dissent: Only One Statutory Basis Needed
In her dissent, Judge Kelly said that while she agreed the respondent-mother’s efforts toward reunification were “generally positive,” she was “not left with a define and firm conviction” that the trial court erroneously found adequate statutory grounds to terminate parental rights.
“This is especially true in light of KMB’s age and respondent-mother’s failure to rectify the conditions that led to the adjudication over the course of more than three years,” the judge wrote. “Additionally, I agree with the trial court’s determination that termination was in KMB’s best interests, particularly given the length of time that KMB was in care. Accordingly, I would affirm the trial court’s order terminating respondent-mother’s parental rights to KMB.”
According to Judge Kelly, it was “undisputed” that more than 182 days passed from the initial dispositional order and the termination proceedings. “Therefore, the fundamental issue is whether the conditions that led to adjudication continued to exist and, if so, whether there was a reasonable likelihood that they will be rectified within a reasonable time considering KMB’s age. I agree with the majority that respondent-mother’s issues with domestic violence, substance use, and improper supervision led to the initial adjudication. However, I disagree with the majority’s conclusion that respondent-mother rectified these conditions to the extent that the child can be safely reunified with her.”
Referring to the trial court’s statutory grounds for termination, Judge Kelly observed the following:
domestic violence “was a primary reason” for the trial court to take jurisdiction and “[c]learly, this condition was not rectified based on the record.”
the respondent-mother was “properly notified regarding the consequences of maintaining a relationship” with the respondent-father “and the record demonstrates that respondents’ continued contact resulted in further domestic-violence episodes and hampered visitations with KMB.”
the respondent-mother was found to be “noncompliant with her substance screenings during the pendency of the case, completing only 3 out of 42 scheduled screenings and submitting 15 unscheduled drug screenings that did not qualify as random screenings under the case service plan.”
given the “significant amount of time” the respondent-mother had to benefit from services, the trial court “did not clearly err by finding that the conditions that led to the adjudication continued to exist and were not reasonably likely to be rectified within a reasonable period of time.”
Judge Kelly further indicated that she “shared” the majority’s concern with housing concerns being the basis for termination, especially given the lack of evidence provided explaining why the extended-stay motel was inadequate. However, apart from the housing concern, she said the trial court correctly found a statutory ground for termination under MCL 712A.19b(3)(c)(i).
“While termination may be justified under more thn one statutory basis, only one basis under MCL 712A.19b(3) must be established by clear and convincing evidence to warrant termination of parental rights,” the judge wrote. “I would conclude that the trial court did not clearly err with respect to its statutory-grounds determination and that termination was properly supported under MCL 712A.19b(3)(c)(i).”
In addition, “I would further conclude that the trial court did not clearly err when it determined that termination of respondent-mother’s parental rights under MCL 712A.19b(5) was in the best interests of KMB,” Judge Kelly said. “KMB’s present placement is able to provide him with the permanency, security, and overall healthy environment needed for the minor child to grow and develop. Continued reunification efforts, at this point in time, are outweighed by the minor child’s need for stability and finality, as the child first came into care at just seven weeks old. The trial court did not clearly err by finding that termination of respondent-mother’s parental rights was in the best interests of KMB.”
