IN RE HAYES MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of CHRISTOPHER JOSEPH HAYES,
LORRAINE MARIE HAYES, CAROL LYNNE
ASHLEY HAYES, JESSICA LINETTE HAYES,
PAUL DAVID HAYES II, and STEPHANIE ANN
NICOLE VIOLET HAYES, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
April 28, 2000
Petitioner-Appellee,
v
No. 220439
Wayne Circuit Court
Family Division
LC No. 94-314881
KATHLEEN MARGARET DOUGHERTY,
Respondent-Appellant,
and
PAUL DAVID HAYES,
Respondent.
Before: Kelly, P.J., and Holbrook, Jr. and Griffin, JJ.
PER CURIAM.
Respondent-Appellant (hereinafter “respondent”) appeals as of right from the family court’s
order terminating her parental rights to her six children pursuant, MCL 712A.19b(c)(i); MSA
27.3178(598.19b)(c)(i) [the conditions which led to the adjudication continue to exist], MCL
712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g) [the parent has failed to provide proper care or
custody for the child] and MCL 712A.19b(3)(j); MSA 27.3178(598.19b)(3)(j) [there is a reasonable
likelihood the child will be harmed if returned to the home of the parent].1 The six children involved in
this case are Christopher J. Hayes (4/23/88), Lorrain M. Hayes (7/8/89), Carol L. Hayes (3/24/91),
Jessica L. Hayes (9/19/92), Paul D. Hayes (2/3/95), and Stephanie A. Hayes (5/28/96). We affirm.
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This family has been known to Protective Services of the Family Independence Agency since at
least January 1993, and to the Wayne County Juvenile Court since at least November 1994.
Respondent became involved with the system in 1994 after being arrested for driving under the influence
of Toluene, a paint thinning product known to be used by glue sniffers. She had previously been
ticketed in Detroit for a similar violation. At the time of the incident in 1994, an inspector from the
Department of Social Services inspected the family home and concluded that it was acceptable for the
children to continue residing there.
An inspection of the home in May 1997, found the children and respondent to be living in
conditions of extreme neglect, with trash and food strewn around the roach-infested house, no food for
the children to eat, no juice or milk for the babies to drink, and the filthy children infested with head lice.
The children’s immunizations and physical examinations were not current, and the children were not
attending school regularly. At the time, respondent admitted to infrequent use of marijuana to alleviate
stomach discomfort due to ulcers, but denied using any inhalants. She claimed that an empty Toluene
can found in the home belonged to the children’s father, from whom she had been separated. The
father also had a history of substance abuse and had not had much involvement with the family since
respondent obtained a PPO against him in September 1996. The children were made temporary wards
of the court in July 1997, and the children were placed in foster care.
The parents signed a Parent/Agency Agreement calling for the following: attending weekly
family visits; maintaining weekly contact with the caseworker; obtaining and maintaining safe, suitable
housing; obtaining and maintaining a legal source of income; attending all court hearings; participating in
psychological evaluation at the Clinic for Child Study; attending and completing parenting classes;
participating in drug/alcohol assessment; participating and completing outpatient drug treatment;
remaining drug and alcohol free; and attending weekly NA/AA meetings.
Dispositional hearings were held over a course of the following year. A permanency planning
hearing was held on July 15, 1998, based on respondent’s failure to comply with the treatment plan.
The permanent custody petition charged that respondent had “not submitted any drug screens,
participated in substance abuse treatment, obtained suitable housing, attended NA/AA meetings, or
participated in a Clinic for Child Study Evaluation.”
Trial on the supplemental petition for permanent custody was held on January 8, 1999.
Petitioner presented only one witness, Tracey Ventola, who was the child and family caseworker from
Orchards Children’s Services assigned to this case on August 25, 1998. Her testimony revealed that
respondent had satisfied many of the conditions of the treatment plan. Ventola testified that respondent
had attended scheduled family visits and court hearings, and had maintained weekly contact with her
case worker. Respondent also participated in a psychological evaluation through the Clinic for Child
Study, and she had completed parenting classes. She had secured employment as a waitress at a Big
Boy restaurant in Dearborn. 2
Ventola also testified that, to the best of her knowledge, respondent was residing with her
boyfriend in Macomb County. She knew nothing about the boyfriend’s dwelling. She testified that
respondent had provided proof of a $475 deposit on a residence in Detroit, but had not yet provided
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proof of rental payments or a lease. She testified that respondent had provided her new address,
though she had never visited the site and mail sent to that address had been returned.
Ventola also testified regarding the children’s special needs. Specifically, Christopher had
educational deficits and behavior problems. Jessica had vision problems. Loraine had “oppositional
disorder”3 and “dystemic [sic] disorder.”4 Carol had demonstrated suicidal gestures in the past. All of
the children needed dental work. She noted that all of the children were in therapy and that counseling
seemed to be going well.
Importantly, Ventola testified that respondent had submitted only seventeen drug screens of the
fifty-seven requested, and three of the seventeen were positive for controlled substances.5 The last
positive drug screen was from July 1998, and respondent had provided one negative screening in both
November and December 1998. Respondent had attended some NA/AA meetings, but quit because
she felt the meetings were for hardened drug users. She also participated in individual counseling
sessions from July through November 1998, but had quit of her own volition.
Ventola testified that, although respondent had complied with some aspects of her treatment
plan, she had not addressed her substance abuse problem or obtained appropriate housing. Ventola
noted that respondent had indicated that she did not follow though on drug assessment/treatment
referrals because of problems with insurance or Medicaid, invalid identification, and because she was
living in communities outside of the referral’s location. She was concerned because respondent had left
a telephone message on her answering machine and “the messages she left her words were slurred and
she sounded very much under the influence.” Ventola stated that she was seeking permanent custody
because respondent had not addressed her substance abuse problem. She opined that it was best for
the children to be placed in a stable environment.
Respondent testified that she could not follow up on the referral to Herman Kiefer for drug
assessment because she was living outside of Detroit. She also had problems with the referrals because
she had no insurance. She claimed to have gone through six referrals before being accepted by
therapists at Burdette and Doss. Respondent explained that she was taking pain medication because of
her broken leg at the time of the positive drug screens.6 Respondent provided the court with a report
from Herman Kiefer that, as of January 7, 1999, respondent did not have a continual substance abuse
problem. She offered no explanation for providing only seventeen of the fifty-seven requested urine
samples.
Respondent also testified that she had moved into a one-bedroom, month-to-month rental home
in November 1998. She provided the court with photographs of the kitchen and living room of the
house. She noted she had provided her caseworker with proof of paying a rent deposit. She also
testified that she knew her children had special needs. She acknowledged that Christopher had
problems with school and needed more attention and structure. In closing, respondent’s counsel
referred the court to the Foster Care Review Board’s agreement with the agency’s plan to reunify the
family, qualified by its concerns that the parents had not complied with the treatment plan. The family
court issued its order terminating respondent’s parental rights on February 26, 1999.
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On appeal, respondent argues that the evidence did not support the family court’s order
terminating her parental rights. Specifically, she argues that she had obtained safe, suitable housing for
the children, and that she understood and could meet the children’s special needs, which needs were not
addressed by the Parent/Agency Agreement. We disagree.
We review the family court's decision regarding termination of parental rights in its entirety for
clear error. In re Hall-Smith, 222 Mich App 470, 472; 564 NW2d 156 (1997). The court must
terminate parental rights if it finds clear and convincing evidence that one or more enumerated statutory
grounds for termination exist, MCL 712A.19b(3); MSA 27.3178(598.19b)(3), unless it finds that
termination is clearly not in the child's best interests. MCL 712A.19b(5); MSA 27.3178(598.19b)(5).
Termination of a parent's rights need be supported by only a single statutory ground. In re McIntyre,
192 Mich App 47, 50; 480 NW2d 293 (1991).
The burden of proof is on the party seeking by court order to terminate the rights of respondent
over the child. MCR 5.974(A)(3). Once the party seeking termination has established by clear and
convincing evidence that a statutory ground for termination exists, a presumption for termination is raised
“that can only be rebutted by a showing that termination is not in the child’s best interest.” In re HallSmith, 222 Mich App 470, 472; 564 NW2d 156 (1997). The parents have the burden of going
forward with some evidence of the child’s best interests. Id. at 473. The parents, however, do not
bear the burden of proof regarding the best interests of the child. In re Boursaw, ___ Mich App ___;
___ NW2d ___ (2000). If the parent presents some evidence that termination is not in the best
interests of the child, then the mandatory presumption in favor of termination is lifted and the party
seeking termination must meet its burden of proof. Id.
The family court made only one factual finding with which this Court has difficulty. The family
court stated that respondent was currently living with her boyfriend in Macomb County. The evidence
presented by respondent showed that she had rented housing in Detroit. She provided her worker with
a receipt for the rent deposit and she provided the court with photographs of the home. This evidence
rebutted the charge that she had not obtained housing, but did not address the Macomb County
residence issue. However, since the caseworker had not inspected the home, there is no basis for
determining whether the Detroit housing was safe or suitable for the children. Regardless, the family
court’s remaining findings were supported by clear and convincing evidence.
Respondent agreed to participate in and complete outpatient drug treatment, which she failed to
do. She agreed to participate in drug/alcohol assessment. She did not obtain an assessment until the
day before trial and nearly eighteen months after her children had been placed in protective custody.
She also agreed to remain drug and alcohol free, but submitted only seventeen of the fifty-seven
requested drug screens. It was revealed at trial that the screens were not properly set up to test for
Toluene, and it was suggested that respondent stopped participating in the screening after the proper
tests were requested. She also failed to attend weekly NA/AA meetings.
Based on the evidence, this mother did make some effort to become a better parent, as is
demonstrated by her completing parenting classes, keeping up with visitation and court appearances,
and finding employment. However, the evidence also shows that respondent failed to address her
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substance abuse problem. Had she participated in assessment earlier on, remained drug free after
attending NA/AA meetings and participating in treatment, we would have a closer question. However,
we agree with the agency recommendation that permanent placement is crucial to the development of
the children, and that the children would not be served by prolonging their placement with foster
families. There has been no showing that it would be in the best interests of the children to return them
to their mother. MCL 712A.19b(5); MSA 27.3178(598.19b)(5). The family court properly
terminated respondent’s parental rights.
Affirmed.
/s/ Michael J. Kelly
/s/ Donald E. Holbrook, Jr.
/s/ Richard A. Griffin
1
The family court also terminated parental rights based on MCL 712A.19b(3)(a)(ii); MSA
27.3178(598.19b)(3)(a)(ii) [the child’s parent has deserted the child]. The children’s father had not
visited them since moving to Chicago in September 1997, and thereafter reported no interest in planning
for his children. The court concluded that the father had abandoned his children and he is not appealing
the court’s decision terminating his parental rights. However, there was no evidence that respondent
abandoned her children, and we deem this portion of the court’s findings applicable to the father only.
2
Respondent suffered a broken leg in June 1998 and underwent surgery in July 1998, forcing her off
the job. She was back to work by the time of the trial for permanent custody.
3
Oppositional defiant disorder is a pattern of negativistic, hostile, and defiant behavior lasting at least 6
months.
4
We presume that the witness meant to state that Christopher suffered from dysthymic disorder, which
is characterized by an overwhelming yet chronic state of depression, exhibited by a depressed mood for
most of the days, for more days than not, for at least 1 year in children.
5
The positive drug screenings were on June 22, 1998 (marijuana), July 17, 1998 (cocaine), and July
28, 1998 (cocaine and morphine). A screen from May 22, 1998, was negative with possible
adulteration.
6
At trial, respondent produced the discharge report from the hospitalization for her broken leg. It
indicated that she had been prescribed codeine, as well as other medications.
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