IN RE MCELWEE MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
November 30, 2010
In the Matter of MCELWEE, Minors.
No. 297358
Genesee Circuit Court
Family Division
LC No. 08-123798-NA
In the Matter of MCELWEE, Minors.
No. 297360
Genesee Circuit Court
Family Division
LC No. 08-123798-NA
Before: BECKERING, P.J., and JANSEN and TALBOT, JJ.
PER CURIAM.
In this consolidated appeal, respondents-appellants appeal by right the trial court’s order
terminating their parental rights to the minor children under MCL 712A.19b(3)(c)(i), (c)(ii), (g)
and (j). The trial court also terminated respondent father’s parental rights under MCL
712A.19b(3)(b)(i) and respondent mother’s rights under MCL 712A.19b(3)(b)(ii). We affirm.
The trial court did not clearly err by finding that the statutory grounds for termination of
respondents’ parental rights were established by clear and convincing evidence. MCR 3.977(J);
In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989). There was legally admissible evidence
supporting the court’s findings and conclusion. This child protective proceeding was initiated on
March 20, 2008, when a referral source noted extensive bruises on J.C.N.’s face, and
investigation revealed deplorable conditions in respondents’ home. Jurisdiction was assumed
pursuant to respondent mother’s no contest plea to J.C.N.’s bruises, previous medical neglect of
E.J.N., and the unfit condition of the home, all of which constituted failure to provide proper care
for the children. Upon further investigation, additional conditions arose, including respondents’
medical neglect of other children, particularly A.J.M., physical abuse of and failure to protect the
children, inability to properly control or discipline the children, respondent mother’s inability to
control her anger, and respondent father’s cognitive limitations. More than 182 days elapsed
between the April 29, 2008 adjudication and the March 10, 2010 termination, and between the
notice to rectify the other conditions and the March 10, 2010 termination.
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Respondents argue on appeal that the trial court improperly terminated their parental
rights based on “other conditions” that were not established by legally admissible evidence,
including respondent father’s cognitive limitations, his physical abuse of the children, and
respondent mother’s failure to protect the children from abuse. See MCR 3.977(F)(1)(b). In
addition, respondents argue that the evidence showed they had rectified all conditions leading to
adjudication and were able to provide proper care for the children within a reasonable time, but
the trial court improperly based termination on keeping the children in “better” placements
instead of returning them to respondents’ home.
The trial court did not clearly err by finding that respondents had failed to rectify the
original condition of unsuitable housing. Respondents moved to a new home, but testimony
established that respondents denied the DHS caseworker entry. In addition, while the landlord
testified that respondent’s home was clean, he did not specify his standard of cleanliness, and the
home’s total unmodified size of 845 square feet was too small to accommodate nine people.
The trial court also did not err by finding that respondent father had cognitive deficits.
Testimony by the DHS caseworker and family therapist, and the trial court’s own observation of
respondent father when he testified, supported the trial court’s finding. Nothing in the record
established that this was a condition that could be rectified within a reasonable time.
The primary conditions that respondents needed to rectify were lack of parenting skills,
inability to control the children, neglect of the children’s medical, educational and special needs,
and respondent mother’s inability to control her anger. Respondents received notice to correct
these conditions, hearings, and a reasonable opportunity over a two-year period of time to rectify
the conditions through services that were provided. The trial court did not err by finding that
respondents failed to rectify these conditions, and would not likely do so within a reasonable
time. The court noted that respondents had complied with services, but remained concerned that
neglect and physical abuse would continue if the children returned home. Respondents were
able to articulate appropriate means of discipline and resolving family conflict, but the family
therapist raised the issue of cognitive deficits and could not state whether respondents were truly
able to change their parenting style. While some evidence regarding respondent father’s cruel
and inappropriate corporal punishment of the children remained hearsay, the trial court received
legally admissible testimony by the DHS caseworker regarding her personal observation of
extensive bruises and wounds on J.C.N.’s face and body, as well as wounds to the other
children’s heads at the time of removal. In his testimony, respondent father denied he imposed
any form of discipline other than occasionally hitting the children with a hand if time outs and
loss of privileges were not effective; but he also admitted to hitting G.I.L. with a bat. He insisted
that the children obtained their injuries from classmates or fighting with one another. In her
testimony, respondent mother tearfully refused to implicate respondent father in any wrongdoing
and pleaded lack of memory regarding any discipline other than hitting or slapping with a hand,
and the incident with the bat. We must defer to the trial court’s ability to judge the credibility of
the witnesses who appeared before it. In re Miller, 433 Mich at 337. Based on the testimony it
heard, the trial court concluded that respondent father inflicted abusive corporal punishment
upon the children and respondent mother failed to act to protect them.
Additional evidence showed that respondent father did not complete counseling, that
respondent mother took prescribed medication but remained unable to control her temper and did
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not discuss with her therapist the substantive issues regarding her relationship with respondent
father and the children, and that respondent mother refused to attend therapy sessions unless the
therapist addressed topics that she found acceptable. Respondents continued to distrust the DHS,
refused the caseworker access to their home, and resisted or excessively delayed in following up
on certain services, all of which strongly suggested that they would not proactively address the
children’s many special needs and would resist monitoring if the children were returned to their
home. Given the evidence presented to the trial court in this case, we perceive no error in the
court’s findings that the statutory grounds for termination were proven by clear and convincing
evidence.
The evidence also showed that termination of respondents’ parental rights was in the
children’s best interests. MCL 712A.19b(5). The parties agreed that respondents and the
children were bonded and loved one another. The family therapist, however, testified that the
children desired closure and needed immediate permanency, and that the worst outcome would
be to further delay permanency by prolonging these proceedings. The evidence affirmatively
established that respondents would not rectify the conditions within a reasonable time, and the
trial court therefore did not err by finding that termination was in the children’s best interests.
Lastly, respondents argue that the trial court’s order of termination was based on keeping
the children in a “better” home rather than on clear evidence of parental unfitness. However, as
noted previously, the evidence supported the statutory grounds for termination. Once the
statutory grounds were met, comparison of alternative homes was permitted. See In re Mathers,
371 Mich 516, 530; 124 NW2d 878 (1963). The record did not reveal comparison of homes, but
rather that the trial court gave thoughtful consideration to the impact on each child of
termination, reunification, or reunification of some of the children but not others. The court
properly noted that the children had made progress since being placed with relatives, and did not
clearly err by finding that termination of respondents’ parental rights was in the children’s best
interests. MCR 3.977(J).
Affirmed.
/s/ Jane M. Beckering
/s/ Kathleen Jansen
/s/ Michael J. Talbot
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