IN RE DEBASSIGE/AIKEN MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of MICHAEL DEBASSIGE and
ANTHONY AIKEN, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 15, 2008
Petitioner-Appellee,
V
No. 282735
Marquette Circuit Court
Family Division
LC No. 07-008589-NA
TOREY AIKEN,
Respondent-Appellant.
Before: Jansen, P.J., and Zahra and Gleicher, JJ.
PER CURIAM.
Respondent mother Torey Aiken appeals as of right from the October 22, 2007, order
terminating her parental rights to Michael Debassige (d/o/b 5/18/04) and Anthony Aiken (d/o/b
10/5/05), under MCL 712A.19b(3)(c)(i) (conditions of adjudication continue to exist), (g)
(failure to provide proper care and custody), and (j) (children will be harmed if returned to
parent’s home), which was entered by the Marquette Circuit Court. Respondent and Michael
were members of the Sault Tribe of the Chippewa Indians, and Anthony was eligible to be a
member. The trial court found that the continued custody by respondent mother would result in
serious emotional or physical damage to the children, under 25 USC 1912(f). Respondent
appeals as of right. We affirm.
I. Facts
Shortly after Michael’s birth, a protective services case was opened because respondent
wished to remove him from the intensive care unit against medical advice. Petitioner offered
respondent services and a protective services caseworker checked on the children a few times a
month for two years. Over this period, there were calls to protective services regarding
respondent’s care of the children and respondent took the children out of Early-On services
several times.
On March 10, 2007, a petition for temporary custody was filed alleging, among other
things, that (1) on March 9, 2007, police responded to a child abuse call at the St. Vincent
DePaul store in Gwinn, where two employees witnessed respondent and her mother yelling and
swearing at Michael, calling him a “f***ing retard” and a “f***ing bastard,” and saw respondent
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mother yanking Michael’s arms, (2) respondent mother told employees to mind their own
business and that Michael was retarded and needed to be yelled at, and (3) police removed the
children from respondent mother on that date.
On August 7, 2007, a petition to terminate respondent mother’s parental rights was filed.
Respondent initially signed a release of parental rights on August 30, 2007, but on September 14,
2007, she filed a motion to revoke her release. On October 20, 2007, an order revoking
respondent mother’s release was entered. The termination trial began on October 22, 2007.
The trial court took testimony from seven witnesses familiar with respondent’s situation.
The trial court also heard testimony from respondent, who attempted to counter or explain her
conduct as testified to by the other witnesses. After the close of proofs, the trial court authored
an eight-page written opinion that thoroughly set forth the court’s findings of fact and cogently
expressed the court’s conclusions of law. The trial court terminated respondent’s parental rights.
This appeal followed.
II. 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).
III. Analysis
Respondent argues on appeal that the trial court clearly erred in finding that the statutory
grounds for termination were established by clear and convincing evidence and in finding that
petitioner proved beyond a reasonable doubt, as is required by 25 USC 1912(f), that the
continued custody of the children by respondent was likely to result in serious emotional or
physical damage to the children. In state court proceedings involving Indian children, both state
statutory grounds and the ICWA must be proven. In re SD., 236 Mich App 240, 246; 599 NW2d
772 (1999).
A. Sections 19b(3)(c)(i) and (g)
The trial court did not clearly err in finding that there was clear and convincing evidence
to support termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (g).
MCR 3.977(G)(3); MCR 3.977(J). The conditions leading to adjudication were respondent’s
verbal and physical abuse of Michael and respondent’s lack of progress despite being offered
services by petitioner for two years before the removal of the children. The child protective
services worker who oversaw respondent’s case before the children were removed testified that
respondent regularly removed the children from Early-On and other services, which were crucial
to the correction of the children’s many developmental delays, and re-enrolled them only after
his intervention. After adjudication, respondent continued the same behavior, beginning a
psychological assessment for Michael, then stopping when she learned that a psychiatric
appointment was involved, and then completing the assessment weeks later. The children had
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severe developmental delays, and respondent did not always acknowledge these delays. Even
more troubling was respondent’s verbal and physical abuse of Michael. Although respondent did
not continue this after adjudication, she was distant and uninvolved during visitation, was unsure
she wanted further visitation, and said so in front of the children. The trial court did not clearly
err in finding that the conditions of adjudication continued to exist or that respondent could not
provide proper care and custody for her children.
Although respondent argued to the trial court and on appeal that she had just begun
services and was doing better on medication, she was offered many of these services before
adjudication and did not take advantage of them, and many of the delays to the start of services
were attributable to respondent. Further, respondent testified that she previously took
psychotropic medication for three to six months but stopped, and that she had been taking her
current prescription for only a few months. Respondent had ample opportunity to show
improvement in her parenting abilities and did not. Therefore, the trial court did not clearly err
in finding that there was no reasonable likelihood that respondent would rectify the conditions
leading to adjudication within a reasonable time or that she would be able to provide proper care
and custody within a reasonable time.
B. Section 19b(3)(j) and 25 USC 1912(f)
The trial court also did not clearly err finding that there was clear and convincing
evidence to support termination of respondent’s parental rights under MCL 712A.19b(3)(j) or
that 25 USC 1912(f) was proven beyond a reasonable doubt. The children had such severe
developmental delays that petitioner’s caseworker testified that she was surprised by the severity
and the tribe’s caseworker testified that she had not seen such delays in her 30 years of
experience. Several witnesses testified that respondent did not acknowledge that anything was
wrong with her children. Respondent verbally and physically abused Michael in the thrift store
and there was testimony that respondent became frustrated at the end of visits. Respondent said
many times that she wanted to release her parental rights and that she did not want future visits,
and she did release her parental rights at one point in the proceedings only to retract the release.
Further, the tribe’s caseworker testified that the tribe’s Child Welfare Committee supported
termination of parental rights. The tribe’s caseworker believed that, if the children were returned
to respondent, they would continue to be exposed to physical and verbal abuse, because
respondent had not done anything that would alleviate the situation and enable her to cope with
her problems, and the children would continue to be denied beneficial services necessary to
correct their severe developmental delays. Based on respondent’s past conduct, the children’s
needs, and the expert’s testimony, the trial court did not clearly err in finding that there was a
reasonable likelihood that the children would be harmed if returned to respondent’s home and
that respondent’s continued custody was likely to result in serious emotional or physical damage
to the children.
C. The Trial Court’s Best Interest Determination
Respondent next argues that the trial court clearly erred in its best interests determination
where it unfairly compared the foster home to her home. We disagree. Termination of parental
rights is mandatory if the trial court finds that the petitioner established a statutory ground for
termination, unless the court finds that termination is clearly not in the child’s best interest.
MCL 712A.19b(5); In re Trejo, 462 Mich 341, 344; 612 NW2d 407 (2000). Although the trial
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court cannot weigh the advantages of a foster home against the home of the respondent parent,
the trial court can consider a child’s progress in foster care when weighing the respondent
parent’s fitness. In re Hamlet (After Remand), 225 Mich App 505, 520; 571 NW2d 750 (1997),
overruled on other grounds, Trejo, supra at 353 n 10.
Here, the trial court considered the children’s amazing improvements while in foster care
and found that the likelihood of respondent’s parenting skills improving dramatically was not
sufficient to establish that termination was not in the children’s best interests. The trial court did
not clearly err where the children’s improvement was not solely based on the foster family but
also on the children being allowed consistent access to Early-On and other beneficial services,
which respondent inconsistently accessed while they were in her care. Because of the children’s
improvement and respondent’s lack of bond with the children, as demonstrated by her lack of
involvement during visits, talk of releasing parental rights, and not wanting future visits, the trial
court did not clearly err in its best interests determination.
Affirmed.
/s/ Kathleen Jansen
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
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