                            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                                                                   UNPUBLISHED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: OWENS, P.J., and BORRELLO and O’BRIEN, JJ.

PER CURIAM.

        In this consolidated appeal, respondent mother (Docket No. 330043) and respondent
father (Docket No. 330044) both appeal the order of the trial court 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 to exist), MCL 712A.19b(3)(g) (failure to provide proper care and
custody), and MCL 712A.19b(3)(j) (reasonable 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 acknowledged that their
relationship was tumultuous at times and that there were several 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 desire to raise them as his children.
The twins were both born prematurely and with respiratory issues. At that time, respondent
mother smoked about a half a pack of cigarettes a day and respondent 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 place1 because her brother’s girlfriend did
not want to be around the children. She testified that she went to stay with her cousin that
evening because she had no place else to go but that she planned to go to either her mother’s or
grandmother’s the next day. Respondent mother acknowledged that her cousin’s house was
filthy; there was pet litter throughout, mildew on dishes and the toilet, and tobacco covering the
kitchen table. Respondent mother further acknowledged that three 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 father’s parents in Florida.


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RK was found unresponsive and was unable to be resuscitated by paramedics. Respondent
father, who was staying with a friend in Flint, claimed that if he had known that respondent
mother and the children were going to stay in that house that evening, 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 protective custody with his siblings.

        Respondent father entered a plea on April 4, 2014 and acknowledged that he had ADHD
and had not been taking his medication. Respondent mother entered a similar plea on May 13,
2014, also acknowledging that she had ADHD and had not been taking 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 by reason of neglect and depravity.
Both respondents participated in psychological evaluations in April of 2014 that identified
mental health concerns as a barrier to reunification. Respondent 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 of adjudication, respondents were
separated and both lacked stable housing, simply sleeping at the 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 respondents 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 being issues with housing, respondent
father’s substance abuse, income, parenting skills, and their relationship with each other. Galea
stated that she gave respondent mother information on housing assistance but she did not follow
through. Galea indicated that respondents were inconsistent in attending parenting times. Galea
testified that she referred respondent father for a substance abuse assessment but he did not
attend.

        In the fall of 2014, respondent father moved back from Caseville and reunited with
respondent mother. Around that time Stephanie Langham became respondents’ case worker.
Langham was able to move parenting times closer to where respondents 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 a number of visits due to the
children’s illnesses. Respondents both testified that these cancellations 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 time respondents quit smoking
cigarettes and began using e-cigarettes.

       During a hearing on January 27, 2015 the trial court ordered Langham to file a
termination petition at the request of the lawyer-guardian ad litem. Langham later testified that
she therefore did so but did not personally believe that termination of parental rights was
warranted at that point. The termination hearing was set for April of 2015 but was adjourned due
to respondents having secured housing and maintained semi-stable employment. Specifically,
respondents had begun sub-leasing a room in a house that was primarily rented by James Clark.
Langham and another caseworker, Jahada Turner, testified that the house was appropriate for

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children. Turner indicated that she performed a background check 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 submitting receipts stating that rent
was $200 and at a later point submitting evidence of a purported lease agreement that stated rent
was $250 a month. Respondents did not produce Clark’s lease with his landlord.

       Respondent father obtained a sizeable settlement check in April 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 week. However, the only documentation of his employment
given to caseworkers was a $250 pay stub, and he acknowledged that this job would only keep
him employed during the summer months.. He testified that he and 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 general knowledge of their children’s medical conditions,
such as breathing problems and surgeries. Respondent mother provided 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.” Additionally, respondent mother was not able to provide detailed
information about her children’s current immunization status or mental health services.
Respondents both testified that they asked questions of caseworkers, doctors, and the foster
parents but did not receive responses. Regarding activities, respondents 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 parents did not always provide
information regarding the children’s appointments. However, respondents 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 either missed drug screens
or had positive screens. Langham testified that respondent mother had missed some drug screens
as well. Turner stated that respondent father used work as an excuse but did not provide her with
work schedule verification. Respondents testified that they had emotional bonds with their
children that were displayed during parenting times. Respondents 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 July, August and September,
2015. At the termination hearing, Turner testified that one of the biggest barriers that remained
unresolved was respondents’ mental health issues. Turner specifically stated that respondent
mother had missed a lot of her therapy appointments. Respondent father acknowledged that his
psychological evaluation recommended counseling; he requested a specific provider that
petitioner was unable to pay for. Both respondents attended and completed parenting classes.
However, Turner testified that after July of 2015 respondents stopped engaging with services
altogether.



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        Despite testifying that he made over $2,000 a month in his present job and he and
respondent mother were receiving over $300 a month in food stamps, respondent father testified
that he had only a little over $500 in savings at the bank even with the couple’s largest monthly
expense being the $200 or $250 they paid Clark in rent. Respondent father testified that he had
more money entrusted to family members.

        Langham did not believe that termination was appropriate because 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 respondent’s mental health goals.
Turner was also concerned about the evidence of stability regarding respondents’ housing
situation. While acknowledging that there was no evidence suggesting that respondents would
be unable to reside with Clark long-term, Turner was bothered by the fact that respondents did
not have a contingency plan and were unable to provide a copy of Clark’s lease with the primary
landlord. Turner testified that the children were in need of stability and permanency. Turner
stated that it was unlikely respondent-mother would be able to resolve her mental health issues in
six months’ time and that the children could not wait that long for stability and permanence.

        The referee issued a written recommendation on October 13, 2015 terminating
respondents’ parental rights. The referee first found that grounds for termination existed under
MCL 712A.19b(3)(c)(i), stating that the conditions that led to adjudication were the death of RK
and a longstanding history of neglect due to lack of housing, unstable mental health, and
substance abuse. The referee found that neither parent had complied with drug testing, and that
it was problematic that respondents and Langham believed that the only barriers to reunification
were a job and a house. The referee believed Turner’s testimony that emotional stability and
substance abuse were also barriers. The referee found that the documentation provided to make
their housing situation seem stable was inadequate because there were conflicting amounts of
rent on the various documents. The referee was also troubled by the fact that, despite appearing
to have sufficient income, mother still needed the department or Wellspring to provide her with a
bus pass.

        The referee next found grounds for termination under MCL 712A.19b(3)(g), noting
respondents’ failure to follow through with the counseling recommended 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 changes 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 decision 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 would be at risk if returned.

       Finally, the referee concluded that termination was in the best interests of the children.
The referee acknowledged that the children and parents had a bond, but found that respondents’
problems with substance abuse and mental instability showed that they could not provide a safe


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and stable home. The referee also focused on the parents’ lack of knowledge regarding the
children’s needs.

       The trial court entered an order adopting the referee’s recommendation to terminate
parental rights and ordered respondents’ parental rights terminated on October 14, 2015. These
appeals ensued.

                                 II. STANDARD OF REVIEW

        This Court reviews “for clear error both the trial court’s decision that a ground for
termination of parental rights has been proved by clear and convincing evidence and, where
appropriate, the court’s decision regarding the child’s best interests.” 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 NW2d 144 (2012). A decision is clearly erroneous if “the reviewing court
on the entire evidence is left with the definite and firm conviction 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 improperly 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 were not issues that led to the initial
adjudication. Respondent father also argues that petitioner failed to provide adequate services.
Respondents also each argue that the trial court erred in its determination that statutory grounds
for termination of parental rights existed. Finally, respondent mother argues that termination of
her parental rights was not in 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 father also argues that adequate
services were not provided. However, a review of the record indicates that there was ample
evidence for the trial court to conclude that respondents’ mental health and substance abuse were
issues at the initial adjudication and that petitioner offered father adequate services.

       Both respondents acknowledged having untreated ADHD at their pleas. Both
acknowledged that their April 2014 psychological evaluations revealed mental health concerns.
Respondent mother testified that respondent father had past problems with alcohol and
marijuana, and Galea reported that respondent mother had an early positive test for marijuana.
While issues with housing, income, tobacco use, and transportation 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 underlying causes of some of these
concerns and even primary concerns themselves. The trial court did not err in determining that
respondents’ failure to adequately participate in mental health services or drug screens was


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evidence of a failure to provide proper care and custody and evidence 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 efforts 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 account the parents’ limitations or
disabilities and make any reasonable accommodations, then it cannot 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) slip 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 requesting to see a specific provider,
“Taylor Psychological.” Langham clarified that petitioner would not pay for the specific
provider that father wanted for his therapy. The trial court was correct to note that while
petitioner “has a responsibility to expend reasonable efforts to provide services to secure
reunification, there exists a commensurate responsibility on the 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 services 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 testified 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 reasonable efforts to “rectify the conditions 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 grounds for termination. We
disagree.

        The trial court first found termination was proper under MCL 712A.19b(3)(c)(i), which
provides that termination is appropriate if the conditions that led to the initial adjudication
continue to exist 182 days after the initial dispositional order and “there is no reasonable
likelihood that the conditions will be rectified within a reasonable time considering the child’s
age.” The conditions that the trial court determined led to adjudication that continued to exist
were housing, income, mental health, and substance abuse. Respondents 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 termination hearing. However, evidence
about this arrangement’s stability was conflicting. Respondents were subleasing and the primary
tenant’s lease was never verified. There was conflicting evidence on the amount of money

                                                -6-
respondents had to pay Clark each month. While there was no evidence definitively suggesting
that the arrangement was unstable, we are not left with a definite and firm conviction that the
trial court mistakenly questioned its stability in light of respondents’ failure to have a
contingency plan and Galea’s testimony that she had given respondent 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 say that the trial court clearly erred
in finding that housing remained an issue at the time of termination and that it was unlikely to be
rectified within a reasonable amount of time.

        Regarding income, respondents both testified that respondent father was earning about
$2,000 a month. However, the evidence concerning father’s income 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 and 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, respondents both reported only
having $550 in savings. Respondent father testified that various 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 to provide for the children in the
event of another separation. On this record, we are not left with a definite and firm conviction
that the trial court erred in concluding that unstable income remained 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 remained at the time of
termination. Respondent mother had missed appointments, and respondent father had insisted on
a certain provider that petitioner could not pay for. Both parties were inconsistent throughout the
case with drug screens, and respondent father did not attend a substance abuse assessment
despite being referred. The trial court’s conclusion that mental health and substance abuse were
concerns that caused adjudication and had not been rectified was not clearly erroneous.

       In short, the trial court did not clearly err in finding grounds 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 challenges the trial court’s best interest 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 additional efforts for reunification of the child with the parent not
be made.” MCL 712A.19b(5). The trial court must find by a preponderance 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 opportunity of the trial court to judge
the credibility of the witnesses who appeared before it.” In re Miller, 433 Mich at 337. The

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children’s bond to the parent, the 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 between 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 stability indicated that termination of
parental rights would be in the children’s best interests. While there is some indication that
respondent mother’s lack of information regarding the children’s medical conditions was partly
attributable to the lack of communication provided by the foster family, the trial court correctly
noted that respondent mother had been present at a surgery where she could have obtained more
information. Furthermore, a caseworker testified that there was a history of medical neglect
when the children were in mother’s care; and, despite one of the children having respiratory
problems, both father and mother continued to smoke. In contrast, 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. Additionally, that the children needed
permanence and stability was supported by Turner’s testimony that the existing problems could
not be rectified in six months’ time and that the children could not wait that long. In short, the
trial court did not clearly err in 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




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