IN RE PHIFER MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DIONTATE THOMAS PHIFER,
JR., DAMION DARNELL PHIFER, DE’AARION
MALACHI PHIFER, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
December 13, 2007
Petitioner-Appellee,
v
No. 277429
Genesee Circuit Court
Family Division
LC No. 05-120122-NA
KENDREA E. ZAMORA,
Respondent-Appellant,
and
DIONTATE THOMAS PHIFER,
Respondent.
Before: Whitbeck, C.J., and White and Zahra, JJ.
PER CURIAM.
Respondent-Appellant Kendrea E. Zamora (respondent) appeals as of right from an order
terminating her parental rights to the minor children under MCL 712A.19b(3)(g) and (j). We
reverse and remand.
Respondent first argues that the ultimate termination decision was improperly delegated
to a referee, contrary to MCL 712A.10(1) and MCR 3.913(A)(1). We disagree. Questions of
statutory interpretation are reviewed de novo. In re SR, 229 Mich App 310, 314; 581 NW2d 291
(1998).
MCL 712A.10(1) authorizes a judge to designate a referee to hear testimony and prepare
a report summarizing the testimony and to make a recommendation for the court’s findings and
disposition. But as this Court observed in In re AMB, 248 Mich App 144, 217; 640 NW2d 262
(2001), “neither the court rules nor any statute permits a hearing referee to enter an order for any
purpose.”
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In this case, as in In re AMB, the judge’s “signature on the order is plainly from a rubber
stamp, not handwritten.” Id. at 218. Unlike In re AMB, however, the referee did not refer to
herself as the court or speak of her right to make a decision. Rather, she stated that she would
“recommend to Judge Weiss” that respondent’s parental rights be terminated, thereby indicating
that she plainly understood that judge, not she, was making the ultimate decision in the case.
Also unlike In re AMB, there are no record statements by the judge tending to indicate that he
failed to review the referee’s findings and recommendations until after the order was entered.
Additionally, contrary to what respondent argues, the order of termination prepared by the
referee contains a recommendation and also contains in ¶ 13 a brief summary of the testimony
received at the hearing. Although the summary is terse and devoid of any balanced presentation
of the evidence which might support a judicial choice to disagree with the referee,1 respondent
has not shown that the referee improperly exercised judicial authority in this case. Reversal is
not required on this basis.
We agree with respondent, however, that the referee failed to advise her of her right to
review by the trial court. MCR 3.913(C) states that “the referee must inform the parties of the
right to file a request for review of the referee’s recommended findings and conclusions as
provided in MCR 3.991(B).” A written request for review must be filed within seven days after
the hearing, or within seven days after the referee issues proposed findings and
recommendations, whichever is later. MCR 3.991(B). “The judge must enter an order adopting
the referee’s recommendation unless . . . the judge would have reached a different result had he
or she heard the case.” MCR 3.991(E). The judge may adopt, deny, or modify the referee’s
recommendation, “on the basis of the record and the memorandums prepared, or may conduct a
hearing.” MCR 3.991(F). These procedures are mandatory. In re AMB, supra at 220.
In this case, while the referee mentioned that she was making a recommendation to the
judge, she never advised respondent of her right to request judicial review, in clear violation of
the court rule. Procedural errors can be considered harmless, unless they affect the fundamental
fairness of the proceedings or contribute to the outcome. See In re AMB, supra at 235. For the
reasons further discussed below, we believe there is a reasonable possibility that the judge may
have reached a different result if respondent had requested review of the referee’s proposed
findings and recommendations. Regardless of whether the judge would have decided this case
differently upon request for review, however, we conclude that reversal is required because the
referee clearly erred in finding that the statutory grounds for termination were established by
clear and convincing evidence.
When termination of parental rights is sought, the existence of a statutory ground for
termination must be proven by clear and convincing evidence. MCR 3.977(F)(1)(b) and (G)(3);
In re Miller, 433 Mich 331, 344-345; 445 NW2d 161 (1989). The trial court’s findings of fact
are reviewed for clear error. MCR 3.977(J); In re Conley, 216 Mich App 41, 42; 549 NW2d 353
(1996).
1
Although the referee also rendered a decision from the bench containing a summary of the facts
and a dispositional recommendation, the hearing was not transcribed until after the termination
order was entered.
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The trial court terminated respondent’s parental rights under MCL 712A.19b(3)(g) and
(j), which permit termination under the following circumstances:
(g) The parent, without regard to intent, 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
age of the child.
***
(j) There is a reasonable likelihood, based on the conduct or capacity of
the child’s parent, that the child will be harmed if he or she is returned to the
home of the parent.
With regard to § 19b(3)(g), the evidence showed that respondent did not yet have housing
or employment, and that she was assaulted approximately a week before she completed domestic
violence classes. In the past, she had resumed her relationship with the children’s father despite
prior incidents of domestic violence against her oldest child and the maternal grandmother. The
children were removed from respondent’s care because she allowed the father to move back in
(or visit), and the father assaulted her. Thus, there was clear and convincing evidence that,
without regard to intent, respondent failed to provide proper care.
However, the referee clearly erred in finding that there was no reasonable expectation
that respondent would be able to provide proper care and custody within a reasonable time.
Although the initial petition was filed in August 2005, and the court assumed jurisdiction over
the children in January 2006, petitioner did not provide respondent with a referral for domestic
violence classes until October 6, 2006, five months after the children were removed from her
care and less that two weeks before the termination hearing began. Although the court ordered
respondent to participate in domestic violence classes in January 2006, she testified that she
could not afford to pay for the YMCA classes, and the Protective Services worker assigned to
this case until August 2006 never made a referral.
The children were removed from respondent’s care in May 2006, and respondent signed a
parent-agency agreement on June 12, 2006, that included domestic violence classes. Although
termination was requested, visitation and services were continued. Yet no referral for domestic
violence classes was made until October 6, 2006, when a new worker, Amber Tyler, was
assigned to the case. Two weeks later, at the end of the first day of the termination hearing,
Tyler asked for discretion to allow respondent to have unsupervised visitation. After the second
hearing date, DHS worker Daniel Spalthoff asked the referee to hold the termination petition in
abeyance to allow respondent to participate in services. Further, respondent was allowed to plan
for reunification with her youngest child, Kaliyah. Thus, petitioner did not consider respondent
incapable of providing proper care and custody, even at that time.
The referee relied heavily on the opinion of Walter Drwal, a psychologist who evaluated
respondent. According to the referee, Drwal believed that respondent was very resistant to
treatment. However, the record discloses that Drwal testified that respondent was amenable to
treatment and would make progress if she expended the effort, but that she would initially be
resistant to treatment. Drwal opined that respondent should be threatened with termination to
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force her to participate in domestic violence classes and support groups, and to cut off all contact
with the father. He added that if respondent did not respond after being clearly faced with the
consequences of noncompliance, she was unlikely to respond at all. However, not having seen
her recently, Drwal was unwilling to conclude that it was a waste of time to provide additional
counseling. Further, Drwal’s opinion did not change the fact that petitioner had a duty to make
reasonable efforts to alleviate the conditions that brought the children into care, yet it allowed the
case to fall through the cracks and did not make a referral for domestic violence classes until
shortly before the termination hearing, ten months after the court assumed jurisdiction and more
than a year after the initial petition was filed.
Further, while respondent should never have allowed the father to have contact with her
or the children, the referee evidenced a disturbing belief that respondent should be able to
overcome the cycle of domestic violence on her own, without any assistance. The referee relied
on incidents that occurred before respondent was ever offered services to conclude that she
simply did not “get it,” and was never going to get it. Further, while respondent made a bad
decision in attending a party that led to an assault on her on March 9, 2007, there was no
evidence that this incident was related to domestic violence. Therefore, that incident did not
support the referee’s conclusion that respondent did not learn anything from the domestic
violence classes.
Concerning housing, respondent offered evidence that she had found suitable housing,
had been approved for financial assistance, and had already paid one month’s rent. She had also
resumed participation in the Work First program.
For these reasons, we conclude that the referee clearly erred in finding that termination
was warranted under § 19b(3)(g).
With regard to § 19b(3)(j), the evidence showed that respondent resumed her relationship
with the father after he broke the grandmother’s arm, and again after the incident involving her
oldest child. During the incident involving the grandmother, however, respondent was
attempting to protect the child from the father. Respondent was not home during the second
incident. Nonetheless, by resuming the relationship, she placed her children at risk of harm.
However, the question posed by § 19b(3)(j) is whether, at the time of the termination
hearing, there was a reasonable likelihood that the children would be harmed if returned to the
parent’s care. During the termination hearing, while services were being provided, Tyler asked
the court to allow unsupervised visitation and Spalthoff asked the court to hold the petition in
abeyance. Further, respondent was allowed to plan for reunification with Kaliyah, the youngest
child. It is apparent, therefore, that petitioner did not perceive a reasonable likelihood that the
children would be harmed if placed in respondent’s care. As noted, respondent was not provided
with services until October 2006, and was never given a reasonable opportunity to demonstrate
that she had benefited from domestic violence classes. We therefore conclude that the referee
clearly erred in finding that there was clear and convincing evidence to support termination
under § 19b(3)(j).
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Reversed and remanded for further proceedings not inconsistent with this opinion. We
do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Helene N. White
/s/ Brian K. Zahra
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