IN RE HANNAH MARIE-SUE FOCKLER MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of HANNAH MARIE-SUE
FOCKLER, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 15, 2008
Petitioner-Appellee,
v
No. 281600
Montcalm Circuit Court
Family Division
LC No. 2006-000277-NA
STEVEN WOLFE,
Respondent-Appellant.
Before: Jansen, P.J., and Zahra and Gleicher, JJ.
PER CURIAM.
Respondent father, Steven Wolfe, appeals as of right from the October 29, 2007, order
terminating his parental rights to Hannah Marie-Sue Fockler (d/o/b 11/14/06), under MCL
712A.19b(3)(c)(ii) (other conditions exist which would lead to adjudication), (g) (failure to
provide proper care and custody), and (j) (child would be harmed if returned to parent), which
was entered by Montcalm Circuit Court. We affirm.
I. Standard of Review
This Court reviews decisions terminating parental rights for clear error. MCR 3.977(J).
Clear error has been defined as a decision that strikes this Court as more than just maybe or
probably wrong. In re Trejo, 462 Mich 341, 357; 612 NW2d 407 (2000). Additionally, the trial
court’s findings of fact may not be set aside unless they are clearly erroneous, and this Court
shall give regard to the trial court’s special opportunity to judge the credibility of witnesses who
appeared before it. MCR 2.613(C).
II. Analysis
The minor child’s mother, a minor herself, was under the court’s jurisdiction in a neglect action
when the minor child was born, and the conditions of the original adjudication all concerned the
child’s mother. She voluntarily released her rights to the child during these proceedings.
Respondent was listed as the putative father on the initial petition and eventually established
legal paternity.
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Respondent’s parental rights were terminated pursuant to MCL 712A.19b(3)(c)(ii), (g),
and (j), which provide:
(3) The court may terminate a parent’s parental rights to a child if the
court finds, by clear and convincing evidence, 1 or more of the following:
*
*
*
(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order and the court, by clear and convincing evidence, finds either of
the following:
*
*
*
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be
rectified within a reasonable time considering the child’s age.
*
*
*
(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
child’s age.
*
*
*
(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.
A. Section 19b(3)(c)(ii)
The trial court did not clearly err in finding that section (c)(ii) was established by clear
and convincing evidence. Respondent does not argue that he was not given notice and a hearing
regarding the “other conditions,” but that he was denied a reasonable opportunity to rectify the
conditions because petitioner did not assist him in receiving services and because his case service
plan was only in effect 119 days.
Respondent had ongoing issues of substance abuse and criminal activity. The criminal
activity was both troubling in itself and because his incarcerations prevented respondent from
enrolling in parenting classes and visiting Hannah. Although respondent knew the general terms
of a case service plan for months before it was ordered, he continued to use marijuana and tested
positive for marijuana after his case service plan was in place. Respondent committed a larceny
while the case service plan was in place and violated his probation for larceny by receiving a
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minor in possession conviction. The case service plan was in effect for over three months and
respondent continued to commit crimes and failed to begin any of the requirements of his case
service plan. Therefore, the trial court did not clearly err in finding that the other conditions that
would bring Hannah under the court’s jurisdiction had not been rectified after respondent was
provided a reasonable opportunity to do so.1
Petitioner is required to make reasonable efforts to rectify the conditions that caused a
child’s removal by providing a respondent with a case service plan. In re Fried, 266 Mich App
535, 542; 702 NW2d 192 (2005); MCL 712A.18f(1), (2), and (4). Here, petitioner provided
respondent with a case service plan, but did not refer respondent for a psychological evaluation
or counseling services because respondent said that he might have completed a psychological
evaluation for probation and that he was attending counseling as part of probation. Petitioner’s
reliance on respondent’s statements was reasonable.
The trial court also did not clearly err in finding that there was no reasonable likelihood
that these conditions would be rectified within a reasonable time. In over three months,
respondent had made very little effort to begin his case service plan and had committed crimes,
causing him to be in and out of jail. Respondent also did not follow the requirements of either
his juvenile probation or his adult probation. Therefore, the trial court did not clearly err in
finding that there was no reasonable likelihood that respondent would rectify these conditions
within a reasonable time considering Hannah’s very young age.
B. Section 19b(3)(g)
Also, the trial court did not clearly err in finding that respondent failed to provide proper
care and custody for Hannah and that there was no reasonable likelihood that he would be able to
do so within a reasonable time. Although respondent’s mother and grandmother were willing to
assist him with providing for Hannah, respondent had absolutely no means of providing for
Hannah on his own or even contributing to her care. He also was not ready to care for an infant
on his own and his incarcerations prevented him from developing a bond with Hannah through
visitation and from taking a parenting class. His substance use and continued criminality also
prevented him from providing Hannah with a stable home environment. Petitioner did not have
the opportunity to consider placing Hannah with respondent after paternity was established
because respondent was in and out of jail. Clearly, respondent failed to provide Hannah with
proper care and custody.
Given that respondent had several months to prepare to provide Hannah with proper care
and custody while the results of the paternity test were pending and that he had over three
months after the case service plan was in effect and he made very little progress, if any, toward
providing proper care and custody, the trial court did not clearly err in finding that respondent
1
The 182-day requirement in section (c)(ii) begins to run from the initial dispositional order.
The initial dispositional orders in this case were entered December 13, 2006, and respondent was
ordered to take the necessary steps to establish that he was the child’s legal father. More than
182 days had passed when respondent’s parental rights were terminated on October 29, 2007.
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could not provide proper care and custody for Hannah within a reasonable time, given her very
young age.
C. Section 19b(3)(j)
The trial court found that, because of respondent’s continued use of marijuana and
alcohol, criminality, failure to receive mental health services, and lack of bond with Hannah,
there was a reasonable likelihood that Hannah would be harmed if placed with respondent.
While there is no evidence of abuse or any reason to believe that respondent would physically
harm Hannah, for the reasons discussed above, we cannot conclude that the trial court clearly
erred in finding that the elements of section (j) were established.
III. Conclusion
The trial court did not clearly err in finding that the statutory grounds for termination
were established by clear and convincing evidence.
Affirmed.
/s/ Kathleen Jansen
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
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