                          STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                     UNPUBLISHED
In re W. N. JOHNSON, Minor.                                          March 5, 2015

                                                                     No. 320222
                                                                     Wayne Circuit Court
                                                                     Family Division
                                                                     LC No. 10-496636-NA


Before: GLEICHER, P.J., and SERVITTO and RONAYNE KRAUSE, JJ.

PER CURIAM.

                                        AFTER REMAND

        On August 21, 2014, we vacated the circuit court’s termination of respondent-mother’s
parental rights after determining that respondent was denied her right to counsel in the prior
appeal brought by the child’s guardian ad litem (LGAL). In re Johnson, unpublished opinion per
curiam of the Court of Appeals, issued August 21, 2014 (Docket No. 320222) (Johnson II). By
order of October 27, 2014, we retained jurisdiction to consider the propriety of the circuit court’s
ultimate resolution. In re Johnson, unpublished order of the Court of Appeals, entered October
27, 2014 (Docket No. 320222). With the assistance of appointed counsel, respondent has now
fought the Department of Human Services (DHS’s) allegations that termination of her parental
rights is in the best interests of her minor child, WNJ. The circuit court terminated respondent’s
rights on December 1, 2014, based on the lack of a parent-child bond and respondent’s continued
failure to secure a legal source of income and suitable housing. We affirm.

                                 I. RELEVANT PROCEEDINGS

        Respondent has a long history with Child Protective Services (CPS) and the DHS. In
April 2007, the CPS substantiated a medical neglect claim raised against respondent in
connection with the death of her eldest child. Since that time, the agencies have provided
services to respondent for extended periods. These included substance abuse treatment and
counseling, domestic violence counseling, individual counseling and anger management,
educational services, housing and employment assistance, psychological and psychiatric
evaluations, and parenting classes. Despite these services, respondent lost custody of her second
child to the child’s father, and the court terminated her rights to her third child while she was
pregnant with WNJ.

       CPS removed WNJ from respondent’s care when the child was four months old after
discovering that the family house was unsafe and unsuitable for habitation. The DHS then

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provided respondent with another round of services including parenting classes and counseling.
The circuit court declined to immediately terminate respondent’s parental rights and gave her the
opportunity to benefit from services. This Court reversed that decision and ordered the
termination of respondent’s rights, In re Johnson, unpublished opinion per curiam of the Court of
Appeals, issued November 14, 2013 (Docket No. 316211) (Johnson I), but it was later
discovered that respondent lacked counsel during the appellate process. As a result of this error,
respondent lost visitation rights and the benefit of services for 10 months. Supervised visitation
was reinstated upon this Court’s opinion in Johnson II.

       As ordered by this Court, the circuit court conducted a continued best-interest hearing on
remand and accepted updated evidence to augment its decision-making process. The foster care
worker testified that respondent’s supervised parenting time sessions with WNJ were restarted in
early October 2014. Respondent visited with WNJ for 1-1/2 hours twice each week, missing
only two visits while suffering from strep throat. The foster care worker and WNJ’s infant
mental health therapist attended one visit each week and provided guidance to respondent.

        The foster care worker, therapist, and foster mother testified that WNJ, who was 26
months old by the time of the continued hearing, had exhibited speech and developmental delays
since Johnson II issued. Doctors had diagnosed WNJ with “Kawaski disease,” which the
witnesses claimed caused WNJ to suffer extreme and unpredictable allergic reactions to
environmental stimuli. With treatment, WNJ will eventually overcome this disease, but her
diagnosis was too new for doctors to make even short-range predictions. Genetic testing had
also revealed a chromosomal disorder. The evidence is unclear but WNJ may possess an extra X
chromosome. Either condition or both could contribute to the various delays and health
problems experienced by the child.

       The witnesses testified that WNJ’s special needs required a high level of attention. WNJ
had recently begun preschool through a special education program in the Plymouth-Canton
school district. She was scheduled to begin a series of medical tests to ascertain the effect of
Kawaski disease and the chromosomal defect on her body. WNJ also demands a lot of attention
and requires constant supervision.

        Witnesses further described that respondent had completed several services between
April and November 2013. She had submitted to a psychiatric evaluation, began taking
psychotropic medication, and appeared to be doing well. Respondent had completed parenting
classes, domestic violence and substance abuse counseling, and had tested clean at various
random drug screenings. However, the infant mental health therapist testified that respondent
did not show an improvement in parenting skills before the November 2013 termination and
never progressed to unsupervised parenting time. While respondent accepted some guidance
regarding activities during her parenting time sessions, she was resistant to any suggested
changes in her parenting style or techniques.

       A persistent problem throughout the proceedings had also been respondent’s failure to
secure stable housing and a legal source of income. By the time of the continued hearing,
respondent reported that she was cleaning houses and doing hair without a license, both for cash
under the table. Respondent also asserted that she was working part-time in a factory through a


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temp agency. She claimed that she attempted to secure proof of employment, but the temp
agency would not provide it.

        Ultimately, the court found termination of respondent’s parental rights to be in WNJ’s
best interests. The court acknowledged that respondent loved her child very much. However,
the court continued, “We have a child with special needs who is given a lot of one-on-one
attention and mother is having a difficult time getting to her own needs at this point in time.”
Specifically, despite having nearly a year without the rigors of parenting and therapeutic services
and the need to find time for visitation, respondent still had been unable to secure housing and
income. While respondent showed a commitment to attending her parenting time sessions
following this Court’s remand, “that’s just not enough,” the court opined. Respondent had to
“benefit from the services” for continued reunification efforts to be in the child’s best interests.
Given respondent’s history, the court determined that she was “not in a position . . . to parent the
child independent of intensive services, and those services have been ongoing for years.”
Although a 10-month “hiatus” had been caused by court errors, there was no reason to believe
that respondent’s return to services would be any more successful than prior attempts.

                                II. BEST INTEREST ANALYSIS

        The circuit court previously found termination supportable under MCL 712A.19b(3)(l)
based on “[r]espondent’s admission that she failed to comply with a parent-agency agreement for
reunification with another child, and that her parental rights to [another child] were terminated in
May 2012, together with the court records from that proceeding.” Johnson I, unpub op at 1.
Respondent has never challenged that conclusion. On remand, and as ordered by this Court, the
circuit court focused solely on the best interests of the child to determine whether termination of
respondent’s parental rights was required.

        “[W]hether termination of parental rights is in the best interests of the child must be
proven by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182
(2013). The trial court should weigh all the evidence available to it in determining the child’s
best interests. In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000). Relevant factors in
this consideration include “the child’s bond to the parent, the parent’s parenting ability, the
child’s need for permanency, stability, and finality, and the advantages of a foster home over the
parent’s home.” In re Olive/Metts, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations
omitted).

        The evidence presented by the DHS supports that although respondent loves her child,
she and WNJ do not share a bond. Through no fault of her own, respondent was unable to visit
her child for a 10-month period. During that time, young WNJ forgot her mother. As a result,
WNJ looks to the familiar adults supervising the visits, rather than her mother, for comfort and
instruction. As attested to by the witnesses, the bond did not seem to improve over the course of
the visits since early October 2014.

       The DHS also established that despite respondent’s efforts, she had not improved her
parenting skills to the point she could adequately care for a toddler with special needs. The
witnesses noted that respondent had completed several services before Johnson I demanded
termination in November 2013. Although she had shown some progress during that six-month

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period of services, the witnesses opined that respondent had not benefited to the point where she
could have started unsupervised visits, let alone take custody of her child. Moreover, the April-
November 2013 round of services was cumulative to similar services that respondent had
repeatedly participated in since April 2007. As respondent had not adequately benefited from
the services provided over a seven-year period, the court did not err in determining that it was
against WNJ’s interests to require her to wait and see if respondent could improve if given even
more time.

        Moreover, WNJ has been in foster care since she was four months old. She is now nearly
2-1/2 years old. She needs permanency and stability. Yet, respondent still cannot provide for
the child. Even with prior employment and housing assistance, respondent has floated between
the homes of friends and relatives, unable to secure a suitable residence for the child. Although
respondent claims she has obtained employment, she could produce no proof for the foster care
worker. As noted by the circuit court, respondent’s inability to stabilize her own life is evidence
of a conclusion reached in an earlier psychological evaluation: that respondent displays
“weakness in identifying critical issues and providing adequate solutions.”

        Ultimately, respondent faced an uphill battle in challenging the DHS’s evidence that
termination was in the child’s best interests after a 10-month gap in services and visitation. The
circuit court based its termination decision not only on the up-to-date information at the
November 2014 best-interest hearing, but also on respondent’s performance in services between
April and November 2013. A preponderance of the evidence established that respondent could
not adequately provide for WNJ’s special needs within a reasonable time and that termination of
respondent’s parental rights was in the child’s best interests. Accordingly, we discern no error in
the December 2014 termination decision.

       We affirm.




                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Deborah A. Servitto
                                                            /s/ Amy Ronayne Krause




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