IN RE KAIZEN ELIJAH GOMOLL MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KAIZEN ELIJAH GOMOLL,
Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
September 1, 2009
Petitioner-Appellee,
v
No. 290237
Ingham Circuit Court
Family Division
LC No. 08-000407-NA
MELINDA GOMOLL,
Respondent-Appellant.
Before: Saad, C.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Respondent Melinda Gomoll appeals as of right from the January 2009 trial court order
terminating her parental rights to her minor child Kaizen Gomoll (d/o/b February 2007) pursuant
to MCL 712A.19b(3)(g) (failure to provide proper care and custody). We affirm. We decide
this appeal without oral argument.1
I. Basic Facts And Procedural History
When Gomoll was 15-years-old, she was impregnated by Michael Fountain, who was
subsequently imprisoned for criminal sexual conduct, possession of child sexually abusive
material, assault with a dangerous weapon, and breaking and entering. He allegedly took
sexually explicit photographs of Gomoll. She continued to have contact with him, however,
while he was in prison and reported to hospital staff that she planned to marry him upon his
release. In May 2008, she pleaded to an amended petition indicating the above facts, as well as
that (1) she had been assaulted by two other men after her son was removed from her care; (2)
her associations created an unfit environment; and (3) she could benefit from services. Services
were recommended and provided without significant improvement, resulting in an October 2008
hearing that was changed to a permanency planning hearing with the new goal of termination.
1
MCR 7.214(E).
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Colin Parks initiated proceedings in the family court on behalf of the Department of
Human Services. Parks’ initial concerns included Gomoll’s lack of maturity, problems with
bonding, and medical neglect involving Kaizen Gomoll’s respiratory problems. Also, there was
a failure to engage services, lack of employment, the fact that Gomoll was still living with her
mother, who had come under protective services for failing to protect Gomoll from the sexual
abuse and concern that the assaultive behavior may have occurred in front of Kaizen Gomoll.
Additionally, there were questionable explanations for Kaizen Gomoll’s bruising and a delay in
getting him treatment for a broken ankle or leg. Parks also noted that when he suggested
Families First and parenting classes Gomoll was not willing. When he told her this would result
in family court involvement, she told him to go ahead. One of Parks’ overriding concerns was
Gomoll’s lack of awareness that there were issues.
Parks acknowledged that Gomoll had been with Kaizen Gomoll during his hospitalization
in February/March 2008, and that there were notations in the hospital chart showing positive
interactions with the baby. He also acknowledged that notations to the contrary were by only
one observer. Also, there was a notation that Gomoll had ordered an appropriate breakfast for
Kaizen Gomoll and had told nurses that someone needed to be in the room when she would have
to leave the room.
Rebecca Meszaros, an interventionist with Early Head Start of Lutheran Social Services,
testified that she would bring activities and information regarding child development to the
visitations. For the first two months, Gomoll was receptive and participated, and appeared to be
implementing information that she had received in parenting classes. But then Gomoll became
inconsistent, sometimes not receptive, and sometimes not engaged. Gomoll did not make goals
or complete assignments as asked. Over a five- to seven-month period, Meszaros did not see
carry-over from visit to visit and did not see improvement; instead, she saw a negative or
“stagnating trend.”
Emily Anderson, a court-appointed special advocate (CASA) for Kaizen Gomoll,
observed visitations about once a month. She noted that Gomoll’s mother was always present
during the visitations and usually took the lead interacting with the child. Gomoll was often
disengaged. To increase stability for Kaizen Gomoll, Anderson had recommended that Gomoll
get a GED and move out of her mother’s home, but Gomoll was not receptive. She recalled a
conversation in which Gomoll said that no court was going to tell her she needed to get a GED.
Dr. Hazem Al Hnawi was Kaizen Gomoll’s treating physician when Kaizen Gomoll was
in the hospital. Dr. Hnawi found Gomoll to be a concerned, caring, and good parent who asked a
lot of questions, was always with Kaizen Gomoll at night, and followed his instructions with
respect to caring for Kaizen Gomoll. He observed no emotional break and noted that Kaizen
Gomoll’s weight was appropriate for his age. Moreover, he established that the respiratory
problem that resulted in Kaizen Gomoll’s hospitalization had nothing to do with neglect.
Further, he noted that Gomoll continued to call the clinic after the hospitalization, that he
encouraged her to pursue services, and that “she was pretty constant with that.” Dr. Hnawi had
heard from the foster mother that the emotional bond between Gomoll and Kaizen Gomoll was
good.
Khadija Swims was the case manager after Gomoll admitted the allegations in the
petition. Swims was responsible for coordinating services for Gomoll. Counseling and a
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psychological evaluation were recommended due to concerns about Gomoll’s emotional
stability. Swims noted that between June 2008 and January 2009, Gomoll had only attended
three weekly group therapy sessions. A June 2008 psychological evaluation resulted in a finding
that Gomoll continued to make poor choices regarding Kaizen Gomoll and did not appreciate
consequences. Swims had concerns that Gomoll was continuing to make poor choices with men,
one having assaulted her; that she continued living with her mother; and that during observed
supervised visitation, which Gomoll regularly attended except on three occasions, Gomoll
sometimes relied on her mother to do parenting. Gomoll also relied on Rebecca Meszaros, an
Early Head Start interventionist, to interact with Kaizen Gomoll. Some of the visits went well,
but Gomoll was inconsistent. Swims acknowledged that Gomoll completed parenting classes but
did not believe she was implementing the skills and noted that she did not take additional classes
as recommended. Also, Gomoll and her mother did not show up for a meeting to discuss these
matters. Swims acknowledged that Gomoll completed an independent living skills training class.
She noted that Gomoll had provided only two pay stubs verifying employment.
Swims did not believe Gomoll had benefited from services and that the conditions that
brought Kaizen Gomoll into foster care continued to exist. However, certain services
recommended by the psychologist had not been provided. Swims testified that Kaizen Gomoll
was doing well in his current placement and that a permanent family unit existed. Finally, she
noted that Kaizen Gomoll would suffer if Gomoll’s parental rights were terminated given the
emotional bond with Gomoll, but that he would likely be harmed by neglect if those rights were
not terminated.
Kaizen Gomoll’s foster care mother, Kathy Stimer, testified that he was well adjusted
when he came to her and had learned impressive things for his age. From her observations, she
thought Gomoll was a good mother and that it would be best for Kaizen Gomoll if they were
reunited. But Stimer had only been present before and after, but not during, the visitations.
The trial court found that Gomoll did not participate as ordered in family and individual
counseling, but did attend parenting classes and had some parenting skills. The trial court had
directed that Gomoll secure housing away from her mother’s home, which had been deemed
unsuitable. Although the mother was leasing her home to Gomoll, the trial court was not
convinced that Gomoll’s mother was not living there. The trial court noted problems with the
caseworker, which it attributed to Gomoll’s defiance and inability to accept authority and follow
directions. In sum, the trial court found there had been no improvement. The trial court
concluded:
The prosecutor has proved that the mother, without regard to intent, has
failed to provide proper care or custody for the child, and there is no reasonable
expectation she’s going to do that within a reasonable time considering the age of
the child. The child’s very young. He’s entitled to permanency in his life.
Regarding best interest, there is testimony that the child is bonded to his
family. However, the same problems that cause this child to be a ward of the
Court continue. And it is not in his best interest that he be placed back in that
environment or that additional efforts be made for reunification.
Gomoll now appeals.
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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 We give regard to the special opportunity of the trial court to
judge the credibility of the witnesses who appeared before it.5
B. Analysis
Gomoll argues that the trial court prematurely terminated her parental rights because she
had complied with directives to participate in many services, had shown progress as a result of
these services, and was receptive to additional services. We disagree.
The testimony suggested that Gomoll was, at times, well-intentioned with respect to care
of Kaizen Gomoll. Further, the evidence established that she initially appeared to be benefiting
from services. However, the evidence further established that, over time, the benefits had been
fleeting. She did not pursue advanced parenting classes until shortly before the termination
hearing, and she was inconsistent in implementing what she had learned in her initial parenting
class. Similarly, there was evidence of no carry over of instruction that she had received in the
Early Head Start program. Moreover, Gomoll did not obtain a GED and was not fully employed
to the extent that she could have financially provided for Kaizen Gomoll. Further, she allegedly
had individual counseling on only three occasions. It appeared that her associations with several
men were of concern in that she had again been assaulted. Also, there was some suggestion that
she continued living with her mother even though her mother had involvement with protective
services because of her failure to protect Gomoll from the sexual abuse that lead to her
pregnancy. Given this evidence, there was no reason to believe that Gomoll would significantly
benefit from continued services in the relative future. A parent’s failure to comply with the
parent/agency agreement is evidence of a parent’s failure to provide proper care and custody for
the child.6
We conclude that the trial court did not clearly err in finding that a statutory ground for
termination of Gomoll’s parental rights was established by clear and convincing evidence.
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).
6
JK, supra at 214; Trejo, supra at 360-363, 361, n 16.
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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
parental rights.7 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.8 We review the trial
court’s decision regarding the child’s best interests for clear error.9
B. Analysis
Gomoll contends that the trial court erred in its best interests analysis because there was a
bond between her and Kaizen Gomoll and because she had a supportive and loving family. We
disagree. The evidence established that Gomoll was bonded with Kaizen Gomoll. However,
Kaizen Gomoll, who was not yet two-years-old, would, as the trial court found, benefit from
permanency. Thus, the trial court did not clearly err in finding that there was no reasonable
expectation that Gomoll would be able to provide proper care and custody within a reasonable
time considering the child’s age. Coextensively, the trial court did not clearly err in finding that
continued services aimed at reunification were not warranted when services provided to date had
resulted in no significant progress. Termination of Gomoll’s parental rights was in the child’s
best interests.10
In sum, we conclude that the trial court did not err in terminating Gomoll’s parental rights
to the child. Affirmed.
/s/ Henry William Saad
/s/ William C. Whitbeck
/s/ Brian K. Zahra
7
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.
8
Trejo, supra at 354.
9
Id. at 356-357.
10
MCL 712A.19b(5); In re Trejo, supra at 356-357.
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