IN RE SEAL MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KIONNE N. SEAL, KAMALLE
N. SEAL, KEVON N. SEAL, and KESHAUN
NATWONN SEAL, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 12, 2009
Petitioner-Appellee,
v
No. 288044
Wayne Circuit Court
Family Division
LC No. 05-442575-NA
MONIQUE MIRIAM MOORE,
Respondent-Appellant,
and
KEVIN N. SEAL,
Respondent.
In the Matter of KIONNE N. SEAL, KAMALLE
N. SEAL, KEVON N. SEAL, and KESHAUN
NATWONN SEAL, Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 288045
Wayne Circuit Court
Family Division
LC No. 05-442575-NA
KEVIN N. SEAL,
Respondent-Appellant,
and
MONIQUE MIRIAM MOORE,
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Respondent.
Before: Wilder, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
In these consolidated appeals, respondents appeal as of right from the trial court order
terminating their parental rights to the four minor children pursuant to MCL 712A.19b(3)(c)(i)
and (g). We affirm.
Respondent father claims on appeal that he was denied the constitutional right to counsel
when the trial court dismissed his appointed attorney because of respondent father’s failure to
attend hearings and participate in his treatment plan. The constitutional guarantees of due
process and equal protection extend the right to counsel to respondents in termination
proceedings. In re Powers Minors, 244 Mich App 111, 121; 624 NW2d 472 (2001). However,
this Court stated in In re Nash, 165 Mich App 450, 458; 419 NW2d 1 (1988) that “before the
right to appointed counsel arises in cases such as this, there must be a petition seeking the
permanent custody of a child or an indication by the probate court that the termination of
parental rights -- if such an alternative was not previously considered -- has become a
possibility.” (Emphasis in original.) In the instant case, respondent father was represented by
counsel from the time of the preliminary hearing in May 2005 until September 2006. The
petition for termination of parental rights was filed February 4, 2008. Respondent father was reappointed counsel February 27, 2008, and continued to be represented by counsel from that time,
through the termination trial that took place on May 27, 2008, July 15, 2008, and September 9,
2008. Where respondent was provided counsel shortly after termination was sought and was
fully represented in the termination trial, he was not denied the constitutional right to counsel.
Respondent father also cites MCR 3.915(B), which requires the court to advise a
respondent at the first court appearance of the right to retain an attorney or have one appointed if
respondent is financially unable to retain counsel. See also MCL 712A.17c(4)(a), (b), requiring
the court to advise respondent at the first court appearance of “the right to an attorney at each
stage of the proceeding.” Thus the statute and court rule provide a right to counsel that arises
before the constitutional right attaches. See In re Osborne, 230 Mich App 712, 716; 584 NW2d
649 (1998), vacated on other grounds, 459 Mich 360; 589 NW2d 763 (1999) (“Although the
right to court-appointed counsel in all cases is not guaranteed by the United States Constitution,
MCR 5.915(B)(1) [now MCR 3.915(B)(1)] mandates the appointment of counsel for all indigent
parents in a child protective proceeding.”) (Footnotes omitted).
Petitioner correctly notes that a respondent may waive the right to indigent counsel by
failing to contact counsel and appear at review hearings. In re Hall, 188 Mich App 217, 222;
469 NW2d 56 (1991). In Hall, however, the parent failed to contact counsel for 16 months,
substantially more than the five months in this case. Id. Moreover, respondent father was
participating, however minimally, in his parent-agency agreement by visiting the children
(sporadically), in contrast to the respondent in Hall, who was living in Chicago at an unknown
address. Id. Finally, the trial court’s suggestion that full compliance with the parent-agency
agreement is a condition for indigent representation is not supported by court rule, statute, or
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case law. Irrespective of whether the lack of participation by respondent father resulted in a
waiver or relinquishment of the right to counsel, we conclude that any infringement of
respondent father’s statute and court-rule based right to counsel was harmless in this case. See
Id. Respondent was represented by counsel at the initial preliminary hearing on May 26, 2005,
and representation by counsel continued until approximately 16 months later, when the trial court
dismissed his counsel at a dispositional review hearing on September 25, 2006. At that time,
respondent father had not appeared before the court for five months. Respondent’s contention
that he would have been provided services if he had been represented by counsel is wholly
unpersuasive. Respondent father was represented by counsel for 14 months after the initial
dispositional hearing, and he was provided a service plan with which he complied only
minimally. This record does not demonstrate that respondent father would have taken advantage
of services during the time he was deprived of counsel, approximately 17 months from
September 2006 until February 2008, nor is it clear that the lack of counsel precluded him from
doing so.
Both respondents challenge the sufficiency of the evidence for the termination of their
parental rights. The trial court did not clearly err by finding at least one statutory ground for
termination of respondents’ parental rights was established by clear and convincing evidence.
MCR 3.977(J); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
At the time of adjudication, which included the four children at issue on appeal and seven
older children to whom respondents’ rights were not terminated, respondent mother admitted that
the home was in deplorable condition without adequate furniture, with trash and debris scattered
throughout, and with two dirty mattresses on the floor. She further admitted that Korrey, one of
the older children, was out of control and that the children had behavioral problems and poor
school attendance. Respondent mother did obtain housing with the assistance of Traveler’s Aid,
approximately 13 months after the adjudication and initial disposition, and in December 2006,
four of the older children were returned to her care. However, problems again arose relating to
her ability to control the children, as two of the older children were reported to have
incorrigibility problems, large quantities of marijuana were found in the home, and the home was
again reported to be in deplorable condition. The family was evicted from the home after one of
the older children had a confrontation with the landlord, and at the time of the termination trial,
respondent mother was living in a shelter. Clearly, respondent mother’s lack of suitable housing
as well as her inability to control the children continued to exist at the time of the termination
trial. MCL 712A.19b(3)(c)(i).
The trial court also did not clearly err by finding that there was no reasonable likelihood
that these conditions would be rectified within a reasonable time considering the ages of the
children. Although respondent mother obtained suitable housing for a time, she was not able to
maintain it despite the extensive services provided. In addition to therapy, parenting instruction,
bus passes, and psychological and psychiatric evaluation, respondent mother received in-home
services from December 2006 to June 2007, after four of the older children were returned to the
home. However, respondent mother lacked the authority to adequately supervise and care for the
children, who destroyed the property of the home, including furniture that had been provided for
the family. In October 2007, the worker reported that windows were broken out, one of the
toilets in the home was broken, the fence in the back yard had been torn down, and garbage was
overflowing in the kitchen. The worker reported that family reunification workers provided
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respondent mother resources to effectively manage the household, but she did not follow through
with the services provided by the agency and the family reunification workers, leaving the
agency with the impression “that the family reunification program did not benefit Ms. Moore at
all.” Even if respondent mother is able to again secure suitable housing, the record supplies
substantial reason to believe that she will not be able to maintain it in safe and suitable condition,
or to maintain a safe and suitable, crime and drug free environment in the home, due to her
inability to control the older children, who were observed to totally ignore her requests and
instructions during visits. Respondent mother’s ability to obtain another house through
Traveler’s Aid is also doubtful, since they have declined to assist her based in part on her history
with them. Under these circumstances, the trial court did not clearly err by finding that there was
no reasonable likelihood that the conditions of adjudication would be rectified within a
reasonable time considering the ages of the children. MCL 712A.19b(3)(c)(i).
Termination of respondent mother’s parental rights was also appropriate under MCL
712A.19b(3)(g). Respondent mother failed to provide proper care and custody for the children
by failing to provide adequate housing. The same evidence that established that there was no
reasonable likelihood that respondent mother would rectify the conditions of adjudication within
a reasonable time, MCL 712A.19b(3)(c)(i), equally indicates that there is no reasonable
likelihood that she will be able to provide proper care and custody for the children within a
reasonable time. MCL 712A.19b(3)(g). Respondent mother argues on appeal that she achieved
most of her parent-agency agreement, and indeed the agency reported in September 2006, that
she had completed her treatment plan, and four of the older children were returned to her care.
However, respondent mother unfortunately has demonstrated an inability to maintain safe and
suitable housing, a critical element of the agreement. This court has noted that a parent must not
only comply with a parent-agency agreement, but must also demonstrate benefit from it. In re
Gazella, 264 Mich App 668, 676-677; 692 NW2d 708 (2005). The events of this case
demonstrated that respondent mother did not adequately benefit from the extensive services
provided.
The minor children argue on appeal that termination was improper because the agency
should have explored respondent mother’s medical condition and assisted her with it. Appellate
counsel for the children relies on In re Woodall, Minor, unpublished opinion per curiam of the
Court of Appeals, issued October 21, 2008 (Docket No. 283185), in which the mother’s strokeinduced disability was to be addressed as a major component of the parent-agency agreement.
The agency provided no rehabilitative services to the mother in that case, and this Court found
that its efforts toward reunification had been inadequate. Id. at slip op, pp 2-3. In this case, by
contrast, the agency provided extensive services to respondent mother throughout the case. The
instant case is fundamentally different from In re Woodall, where it appeared that the respondent
mother’s stroke-induced disability was the primary impediment to reunification. Id. at slip op, p
3. In this case, the very same issues that existed at the time of adjudication, before respondent’s
health condition arose, continued to exist at the time of termination. Finally, respondent mother
has not requested accommodation or special assistance, except in requesting a delay of the return
of the children, which the trial court granted. See In re Terry, 240 Mich App 14, 26; 610 NW2d
563 (2000) (claim that agency is violating ADA must be timely raised so that reasonable
accommodations can be made). The record indicates that respondent was receiving medical
treatment, and Medicaid covered her prescriptions. We conclude that this issue warrants no
relief on appeal.
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The primary condition of adjudication, lack of adequate housing, also continued to exist
with respect to respondent father, who was living with his grandmother at the time of the
termination trial. MCL 712A.19b(3)(c)(i). Respondent father argues that it is unacceptable and
improper to terminate parental rights merely because a parent does not have independent
housing, noting that in most countries is it traditional to live with parents and grandparents. This
argument, while certainly valid, does not address the facts of this case, where respondent father
never put forth his grandmother’s home as suitable for the children, and indeed indicated even
while the trial was pending that he had no fixed address, but was living with his grandmother and
with friends.1 The trial court also did not clearly err by finding that there was no reasonable
likelihood that respondent father’s lack of suitable housing would be rectified within a
reasonable time considering the ages of the children, id., where respondent father was in the
same position at the termination trial as at the time of adjudication approximately three years
earlier. The trial court’s conclusion finds further support in respondent father’s testimony on
August 20, 2008, that he was not working, had an income of $362 per month, and was
continuing to smoke marijuana at that time.
Termination of respondent father’s parental rights pursuant to MCL 712A.19b(3)(g) was
also proper. Like respondent mother, respondent father failed to provide proper care and custody
for the children by failing to provide them with adequate housing. Further, the evidence showing
that there is no reasonable likelihood that respondent father will rectify the conditions of
adjudication within a reasonable time, MCL 712A.19b(3)(c)(i), equally demonstrates that there is
no reasonable likelihood that he will be able to provide proper care and custody for the children
within a reasonable time considering their ages. MCL 712A.19b(3)(g). Respondent father
complied with the parent-agency agreement minimally, completing only parenting classes, a
Clinic for Child Study evaluation, and visiting inconsistently with the children. Respondent
father’s failure to carry out critical components of his treatment plan, including obtaining
housing and employment and participating in therapy, supplies further evidence of his inability
to provide proper care and custody for the children. In re JK, 468 Mich 202, 214; 661 NW2d
216 (2003). Under these circumstances, we are left with no impression that the trial court made
a mistake by finding that respondent father would not be able to provide proper care and custody
for the children within a reasonable time considering their ages. In re Terry, supra at 22.
Finally, both parties challenge the trial court’s finding that termination was in the best
interests of the child. MCL 712A.19b(5). The trial court’s decision regarding the child’s best
interests is also reviewed for clear error. In re Trejo, 462 Mich 341, 365-366; 612 NW2d 407
(2000). In this case, the trial court weighed the possible damage that could be caused by
1
Respondent father also contends that if he had been continuously represented by counsel
throughout the proceedings, counsel would likely have instructed him to seek evaluation of his
grandmother’s home as a suitable residence for respondent father and the children. This
argument loses any potential merit when one notes that during the substantial periods of time
when respondent father was represented by counsel (i.e., during the 14 months following
adjudication and disposition, and during the six months preceding the termination order), there is
no evidence that he ever put forth his grandmother’s residence as suitable for himself and the
children.
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termination against the children’s need for stability. The court felt that the circumstances of the
children “cry out” for more stability than they would have if this case were continued.
The factors weighing against termination are significant, and the attorneys for the
children advocated against termination. The children have a positive bond with respondent
mother and with each other, as well as with their older siblings to whom the respondents’
parental rights have not been terminated. However, the factors weighing in favor of termination
are also significant. These children were found to be living in deplorable conditions requiring
intensive intervention in 2002. Respondent mother received services until September 2003. Yet,
by early 2005, the family was again living in deplorable conditions resulting in the removal of
the children. Respondent mother was able to obtain housing during these proceedings with the
assistance of Traveler’s Aid, but she was not able to maintain it and at the time of the termination
trial was living in a shelter. Respondent mother continued to demonstrate a lack of ability to
exert authority over the children, as the older children were observed to totally ignore her
requests during supervised visits. The incorrigible behavior of the older children in turn
contributed to respondent mother’s inability to maintain a suitable home for the four children
involved in this appeal, as there were large quantities of marijuana in the home and one of the
older children engaged in a confrontation with the landlord that resulted in the family’s eviction.
We are compelled to agree with the trial court’s observation that the circumstances of these
children cry out for stability, and that the continuation of this case seems unlikely to provide the
stability that they need. There is no indication when either of the parents would obtain housing
or that they would be able to offer the stability and permanence that the children need within a
reasonable time.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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