IN RE AMIRE CHIVERS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of AMIRE CHIVERS, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
September 1, 2009
Petitioner-Appellee,
v
No. 288969
Wayne Circuit Court
Family Division
LC No. 01-400993
EVETTE NASH-CHIVERS,
Respondent-Appellant,
and
HORACE CHIVERS,
Respondent.
Before: Saad, C.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Respondent Evette Nash-Chivers appeals as of right from the trial court’s November
2008 order terminating her parental rights to the minor child Amire Chivers pursuant to MCL
712A.19b(3)(g) (failure to provide proper care and custody), (3)(i) (parental rights to another
child were previously terminated due to serious neglect or abuse and previous attempts to
rehabilitate the parent failed), and (3)(j) (reasonable likelihood of harm if child is returned to
parent). We affirm.
I. Basic Facts And Procedural History
In order to understand the trial court’s decision, a brief review of Nash-Chivers’ prior
history with The Department of Human Services, which led to the termination of her parental
rights to her other children, is necessary. In June 2001, two of Nash-Chivers’ other children,
Ivan Nash and Craig Nash, were removed from her care. Nash-Chivers was homeless,
unemployed, addicted to crack cocaine, and had left the children with her mother until she could
properly care for them. The children became wards of the court in August 2001, at which time
Nash-Chivers was pregnant with another child, Daniel Nash. Nash-Chivers admitted to
allegations that she was still using crack cocaine and had not received any prenatal care. A
treatment plan was established.
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Daniel Nash tested positive for cocaine at his birth, and a petition for temporary custody
was filed. Nash-Chivers still did not have her own home, had not received any prenatal care, and
was using crack cocaine about every four days. Nash-Chivers voluntarily relinquished custody.
Daniel Nash subsequently became a ward of the court and reunification efforts were continued.
In October 2002, Nash-Chivers’ parental rights to Ivan, Craig, and Daniel Nash were terminated
because she failed to substantially comply with and benefit from the parent/agency agreement,
which included attendance at substance abuse treatment, counseling, and parenting classes, as
well as requirements to obtain suitable housing, obtain employment, and attend parenting time.
In November 2005, Nash-Chivers gave birth to another child, Ladarius Chivers, who
tested positive for cocaine and received no prenatal care. Horace Chivers was his father. A
petition for permanent custody was filed shortly after Ladarius Chivers’ birth because NashChivers had failed to rectify the condition that led to the removal of her other children and
demonstrated that she could not properly care for the child. Nash-Chivers admitted that she still
had a substance abuse problem, no housing, and no employment. The trial court made Ladarius
Chivers a ward of the court, but did not authorize proceeding immediately to a termination
hearing. The trial court wanted to give Nash-Chivers an opportunity to become sober, obtain
housing, and present proof of income. A treatment plan was established that included substance
abuse treatment, counseling, and parenting classes. Ultimately, however, Nash-Chivers failed to
substantially comply with the treatment plan and her parental rights to Ladarius Chivers were
terminated.
The child in this case, Amire Chivers, was born in April 2008, to Nash-Chivers and
Horace Chivers. Shortly after Amire Chivers’ birth, the Department sought to terminate NashChivers’ parental rights because she had failed to comply with previous treatment plans, failed to
rectify the situation that led to the termination of her parental rights to other children, and failed
to demonstrate that she had the ability to properly care for a child. The petition alleged that
Nash-Chivers had a history of mental illness and substance abuse, that she received prenatal care
only twice during her pregnancy with Amire Chivers, that she and Amire Chivers both tested
positive for cocaine at his birth, and that she denied using cocaine and believed that the drug
screen was positive because she took Tylenol 3 for a toothache.
At the preliminary hearing, Kathryn Willis, the protective services worker, testified that
she believed it was contrary to Amire Chivers’ best interests to be in Nash-Chivers’ custody and
that adoption was in Amire Chivers’ best interests. Willis stated that Nash-Chivers had been
offered treatment plans in the past and the problems that existed then still existed. The trial court
approved the petition and the permanency plan, but subsequently allowed Nash-Chivers
supervised visitation. However, because Nash-Chivers’ parental rights to other children had
been previously terminated, the trial court found that reasonable reunification efforts were not
required in this case and, in fact, reunification would be harmful to Amire Chivers.
At the adjudication hearing in August 2008, the trial court took judicial notice of the legal
file regarding the Department’s involvement with Nash-Chivers since 2001. It also found that it
had jurisdiction over Amire Chivers based on Nash-Chivers’ history of substance abuse, failure
to comply with treatment plans, and failure to rectify the conditions that caused the other
children to be removed from her custody. Additionally, Nash-Chivers failed to protect Amire
Chivers from drug exposure. Nash-Chivers requested that the trial court order the Department to
refer her to services, such as parenting classes, to assist her in her effort to prove that
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reunification would be possible. The trial court stated that the Department was not required to
expend reasonable efforts, but the Department was to give Nash-Chivers a list of places that
conducted parenting classes.
The termination hearing was originally set for October 2, 2008. Nash-Chivers failed to
appear. Her counsel informed the trial court that her absence was because she was the sole
caretaker for her elderly grandmother and had taken her grandmother to the hospital. The trial
court granted Nash-Chivers counsel’s request for a continuance, but required Nash-Chivers to
present documentation substantiating the reason for her absence. In addition, she was to submit
to a drug screen and present the results to the trial court by October 23, 2008, the next trial date.
Nash-Chivers failed to appear at trial, and she had not submitted documentation regarding her
absence at the last hearing or drug screen results.
The trial court determined that there was clear and convincing evidence that the petition
allegations were substantiated, Amire Chivers was at risk of being neglected if left in NashChivers’ care, Nash-Chivers’ parental rights to other children had been terminated previously,
Nash-Chivers failed to comply with previous treatment plans, and there was evidence of
continued drug abuse. Thus, the trial court found that termination of Nash-Chivers’ parental
rights to Amire Chivers was justified pursuant to MCL 712A.19b(3)(g), (i), and (j), it was in
Amire Chivers’ best interests for Nash-Chivers’ parental rights to be terminated, and no
additional reunification efforts should be made.1
II. Statutory Grounds For Termination
A. Standard Of Review
To terminate parental rights, the trial court must find that the petitioner has proven at
least one of the statutory grounds for termination by clear and convincing evidence.2 We review
for clear error a trial court’s decision terminating parental rights.3 A finding is clearly erroneous
if, although there is evidence to support it, this Court is left with a definite and firm conviction
that a mistake has been made.4 Regard is to be given to the special opportunity of the trial court
to judge the credibility of the witnesses who appeared before it.5
1
The trial court also terminated Horace Chivers’ parental rights, but he is not a party to this
appeal.
2
MCL 712A.19b(3); In re Sours Minors, 459 Mich 624, 632; 593 NW2d 520 (1999).
3
MCR 3.977(J); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000); Sours,
supra at 633.
4
In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
5
MCR 2.613(C); In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).
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B. Analysis
On appeal, Nash-Chivers’ argument focuses on the fact that the Department did not
provide her with resources to improve her parenting ability.6 Nash-Chivers’ contends that if it
had, she possibly could have overcome her substance abuse problem and rectified the conditions
that led to Amire Chivers’ removal from her custody. She argues that the trial court might have
reached a different result had she been allowed to benefit from the Department’s resources.
However, her arguments are without merit.
There was no dispute that Nash-Chivers’ parental rights to four other children had been
terminated previously, and the evidence clearly established that prior attempts to rehabilitate
Nash-Chivers were unsuccessful. Thus, § 19b(3)(i) was established. In addition, the Department
presented clear and convincing evidence that Nash-Chivers failed to provide Amire Chivers with
proper care when he tested positive for cocaine at birth and, considering Nash-Chivers’
longstanding substance abuse problem, there was no reasonable expectation that she could
provide proper care and custody within a reasonable time, and, in fact, there was a reasonable
likelihood that the child would be harm if returned to Nash-Chivers’ custody. Therefore,
§§ 19b(3)(g) and (j) were also met.
We note that, contrary to Nash-Chivers’ contention, she was not denied an opportunity to
present evidence of psychological evaluations or substance abuse counseling. And although
Nash-Chivers complains that she was not offered services to address her substance abuse
problem, because Nash-Chivers’ parental rights to four other children were previously
involuntarily terminated and the Department sought termination of her parental rights to the
instant child at the initial dispositional hearing, the Department was not obligated to offer NashChivers services to address her substance abuse problem.7
We conclude that the trial court did not clearly err in finding that statutory grounds for
termination of Nash-Chivers’ parental rights were established by clear and convincing evidence.8
III. Best Interests Determination
A. Standard Of Review
Once a petitioner has established a statutory ground for termination by clear and
convincing evidence, if the trial court also finds from evidence on the whole record that
termination is clearly in the child’s best interests, then the trial court shall order termination of
6
Because respondent’s parental rights to four other children had been involuntarily terminated
and petitioner sought termination of her parental rights to the instant child in its original petition,
petitioner was not obligated to offer respondent services to address her substance abuse problem.
MCR 3.977(E); MCL 712A.19a(2)(c).
7
MCR 3.977(E); MCL 712A.19a(2)(c).
8
MCR 3.977(J); MCL 712A.19b(5); Trejo, supra at 356-357.
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parental rights.9 There is no specific burden on either party to present evidence of the children’s
best interests; rather, the trial court should weigh all evidence available.10 We review the trial
court’s decision regarding the child’s best interests for clear error.11
B. Analysis
Nash-Chivers contends that the trial court erred in its best interests analysis because there
was evidence that a bond may have developed between her and Amire Chivers during their
supervised visits. We disagree. Contrary to Nash-Chivers’ assertions, there was no evidence
that she had developed a bond with the child, who was removed from her custody at birth.
Further, the evidence showed that Nash-Chivers had no income or suitable housing and
continued to abuse drugs. The trial court did not clearly err in finding that termination of NashChivers’ parental rights was in the child’s best interests.12
In sum, we conclude that the trial court did not err in terminating Nash-Chivers’ parental
rights to the child. Affirmed.
/s/ Henry William Saad
/s/ William C. Whitbeck
/s/ Brian K. Zahra
9
MCL 712A.19b(5); Trejo, supra at 350. We note that MCL 712A.19b(5) was recently
amended such that the trial court must now find that termination of parental rights is in the
child’s best interests, 2008 PA 199, effective July 11, 2008, rather than finding that termination
is not in the child’s best interests.
10
Trejo, supra at 354.
11
Id. at 356-357.
12
MCL 712A.19b(5); In re Trejo, supra at 356-357.
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