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STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED May 15, 2012 In the Matter of K. MACDONALD, Minor. No. 305800 Oakland Circuit Court Family Division LC No. 2009-763947-NA

Before: K. F. KELLY, P.J., and WILDER and BOONSTRA, JJ. PER CURIAM. Respondent appeals as of right from an order terminating her parental rights to the minor child pursuant to MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), and (j) (child would likely be harmed if returned to the parent). We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY On November 4, 2009, respondent pleaded "responsible" to the initial petition, which alleged that respondent had a previous history with Children's Protective Services (CPS) and an ongoing substance abuse problem, including a prior criminal case for possession of marijuana for which she was on probation. The minor child was born testing positive for marijuana. Respondent, who was 19 years old, was pregnant with her third child1 and had recently tested positive for marijuana. Respondent was unemployed and living with the child's father, 17-yearold Douglas Lunsford,2 in the home of Lunsford's ex-girlfriend, along with numerous other adults and children. Respondent's oldest child was living with his father. At a December 4, 2009, dispositional hearing, respondent was presented with a parentagency agreement (PAA). Respondent was expected to keep weekly contact with the foster care worker, maintain emotional stability, participate in mental health services, sign a release of information form, obtain a legal source of income, establish suitable and stable housing, and permit unannounced and announced home visits. Respondent was also to continue weekly

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The child was born in January 2010 and was made a temporary ward in a neighboring county. Lunsford had an older child who was also included in the petition for temporary custody.

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supervised visitation at the agency, participate in random drug screens through JAMS, attend counseling, complete parenting classes, and a PACE assessment. Respondent was highly motivated and because of her significant progress, she was granted unsupervised visitation. The child was returned to her care with in-home services. On September 10, 2010, less than three weeks after the child was returned to her care, an emergency removal hearing was held based on two separate instances involving Lunsford. The first involved a shotgun accidentally discharging in the trailer respondent and Lunsford shared. The bullet went through the trailer walls, and into the neighboring trailer. In a second incident, Lunsford engaged in a violent altercation, consumed alcohol, and was arrested for disorderly conduct. Firearms were once again involved. There were also allegations that respondent and Lunsford allowed the paternal grandmother to live in the trailer, which they had been admonished not to do, given the grandmother's prior CPS involvement. It also came to light that respondent and Lunsford had been evicted from their trailer due to neighbors' complaints about their unruly behavior. The trial court found that respondent and Lunsford exercised poor judgment and placed the child in harm's way. The child was removed, but the goal remained reunification. After the second removal, respondent's participation in the PAA was greatly reduced and a termination petition was filed due to her non-compliance. At the termination hearing, foster care case manager Kenesia Cheatham testified that respondent and Lunsford had been evicted twice during the pendency of the case and that respondent was not in compliance with her PAA. Respondent completed the "first round" of individual counseling, but needed ongoing counseling for her depression. Counseling was terminated in August 2010, due to respondent's failure to attend. Another referral was made, and respondent was attending counseling, albeit somewhat sporadically, when the supplemental petition was filed. Visits also became sporadic after the child was removed for the second time. Although respondent reported that transportation was an ongoing problem, the agency had provided her with bus passes. At the beginning of the case, respondent consistently took the drug screens and tested negative, but respondent became noncompliant. Respondent's last drop was in October 2010. Cheatham had clearly informed respondent of what she needed to do regarding the drug screens, outlining the policy at JAMS. Respondent completed parenting classes, but Cheatham opined that she did not benefit from the classes based on respondent's sporadic and inconsistent parenting time, and her failure to address her substance abuse issues. Cheatham recommended termination of respondent's parental rights. She testified that while respondent had always been appropriate with the child and the child loved being with respondent, the child needed permanency. Even though respondent was given significant time to rectify the barriers that brought the child into care, she had not done so. Cheatham observed a significant change in respondent's participation and behavior since the child was removed in September following the incidents that occurred in August 2010. The court found clear and convincing evidence to terminate respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), and (j). The hearing continued to determine the child's best interests. Clinical psychologist Catherine Conti opined that, since respondent had not been consistently participating in drug screens, there was still a concern that she was using. Respondent appeared to be "experiencing considerable emotional disturbance." Based on her -2-

interview and testing, Conti had "serious concerns" that respondent would not be "able to fulfill her parental role." The main problems were unstable housing, lack of employment, and the question of illegal drug use. Respondent only accepted partial responsibility for the fact that the child was in foster care. Foster care worker Cheatham testified that respondent had not found adequate housing. She and Lunsford were residing with unnamed friends. Respondent had not provided any documentation of employment or any source of legal income. Cheatham did not know whether respondent was still participating in counseling. Respondent had not taken any drug screens since October 2010. A hair follicle test taken in March 2011, which had been ordered by the court that had jurisdiction over her youngest child, was positive for marijuana. Respondent also completed a screen on May 5, 2011, through JAMS, which was also positive for marijuana. Respondent attended four of seven visits with the child. There was evidence of a bond between respondent and the child. Respondent parented appropriately and Cheatham believed that respondent cared about the child. Nevertheless, Cheatham opined that termination of respondent's parental rights would be in the child's best interests. Care House volunteer Sherry Diez testified that she visited with the child during family time and interacted with respondent and the child. Diez offered contact information to respondent and told her to contact her for any help if she needed it. Diez informed respondent of the different programs she could utilize, including help with housing and jobs. Respondent never reached out for help. Diez observed that the child was more excited to greet the foster mom after a visit than respondent; however, the visits between respondent and the child were appropriate. Respondent testified that the drug screens were false positives and that she was absolutely not using marijuana. Respondent believed that the child was happy to see her and that the child should have a chance to be with her biological mother. Respondent admitted that after the child was removed a second time, "everything went downhill" and she stopped doing the drug screens. When asked why, respondent stated: "No way. I don't know where to go `cause I'm bouncing from house to house. I don't know all the locations of JAMS, and I honestly don't always get a call back from Ms. Cheatham." She claimed that JAMS was getting their colors confused. She knew it "looks bad, but something that you've done how many years ago doesn't really affect the way that you raise your kids now." She had only smoked marijuana sporadically, but it was in her system when she got pregnant with the child. Respondent further testified that she and Lunsford were evicted from their home in May. They were now living with his aunt until they could find a place. She did not pay rent. Respondent was going to look into renting a trailer in the same park with an aunt. She had been working for Avon for two weeks but had not received a paycheck yet because "[w]e had a little conflict." If the child was returned, she would find a way to take care of her. Respondent's mother and several of Lunsford's family members testified on respondent's behalf, indicating that she was an appropriate and attentive mother.

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In its findings of fact, the court noted that respondent had made excellent progress in the beginning, but then "it all came tumbling down." The court continued: . . . . I think [respondent] would have a pretty good argument that that removal was based on the . . . behavior of [her fianc

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