IN RE PAYNE/DARLING/WRIGHT MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
January 4, 2011
In the Matter of PAYNE/DARLING/WRIGHT,
Minors.
No. 297674
Genesee Circuit Court
Family Division
LC No. 07-122979-NA
Before: SHAPIRO, P.J., and SAAD and K.F. KELLY, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court order terminating her parental rights to
the minor children. We affirm. This appeal has been decided without oral argument pursuant to
MCR 7.214(E).
The trial court ordered termination under MCL 712.A.19b(3)(c)(i) and (c)(ii) as well as
under MCL 712.19b(3)(g) and (3)(j). To terminate parental rights, the trial court must find that
at least one of the statutory grounds for termination set forth in MCL 712A.19b(3) has been met
by clear and convincing evidence and that termination is in the best interest of the children.
MCL 712A.19b(5); In re Sours, 459 Mich 624, 632-633; 593 NW2d 520 (1999). The trial
court’s decision terminating parental rights is reviewed for clear error. MCR 3.977(K); In re
Trejo Minors, 462 Mich 341, 355-357; 612 NW2d 407 (2000); Sours, 459 Mich at 632-633. 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. In re JK, 468 Mich 202, 209-210;
661 NW2d 216 (2003); In re Miller, 433 Mich 331, 337; 455 NW2d 161 (1989). Regard is to be
given to the special opportunity of the trial court to judge the credibility of the witnesses who
appeared before it. MCR 2.613(C); Miller, 433 Mich at 337.
Respondent’s two older children were initially removed from the home in 2007.
Although respondent did not fully comply with the service agreement that she signed, the
children were returned to her care after three months. Less than one month later, the police
raided respondent’s home where they found crack cocaine and weapons and arrested respondent.
The home was also infested with roaches and not safe for children. The court exercised
jurisdiction over the two children who were removed from the home. Respondent was referred
for parenting classes, substance abuse evaluation, random drug screening and supervised
parenting time. There was a period of approximately 10 months during which the state failed to
provide the ordered services. However, services were initiated after that period. In January,
2009, respondent gave birth to a third child who at birth tested positive for cocaine and
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marijuana, and respondent admitted that she had used cocaine throughout her pregnancy. The
DHS petitioned the court to exercise jurisdiction over this third child and the court did so.
Respondent argues that petitioner failed to make reasonable efforts to assist her with
family reunification. She specifically argues that petitioner did not provide her with services to
obtain employment or help her find housing. However, there is no evidence that respondent
sought petitioner’s assistance with housing or employment. To the contrary, the record shows
that respondent had difficulty finding housing because she was not employed full time. Contrary
to respondent’s assertion, she was offered services but failed to take advantage of the services
offered to her.
Respondent’s assertion that she was not offered drug counseling to address her marijuana
dependency is without merit. Following a substance abuse evaluation respondent was referred
for intensive outpatient treatment, but was discharged from treatment in July 2009 due to her
failure to attend. This program addressed general drug treatment and was suitable for someone
with marijuana issues. In January 2009 she completed an IARC assessment and was diagnosed
as cocaine dependent. In March 2009 respondent attended a program at Catholic Charities where
she learned about the effects of substance abuse on families. Despite these programs, she
continued using marijuana through the entire two years of proceedings, and tested positive for
cocaine on more than one occasion. Moreover, respondent does not provide support for her
assertion that she needed special drug treatment for marijuana users. The record shows that
respondent was provided with appropriate services but did not benefit from them.
Respondent did not demonstrate that she could remain drug-free or that she could
maintain independent, suitable housing for herself and her children. At the time the petition was
filed respondent was still living in a cluttered and dirty home that was unsafe and she had a
history of eviction. By the time of the termination hearing, she had moved in with relatives.
Respondent had also failed to demonstrate that she could maintain employment and financially
support her children.
Respondent also argues that her drug use did not place her children at risk or rendered her
unable to care for them. We disagree. We do not criticize the 2007 conclusion by the
Department that, at that time, petitioner’s illicit drug use was limited to marijuana and that return
of the children was proper where, in the words of the subsequent petition, “[respondent’s]
marijuana usage did not present to hinder her ability to care for her children.” However, the
children were placed in protective care a second time after crack cocaine and weapons were
found in respondent’s home, and the house was found to be roach-infested and unsafe for
children. Petitioner then had ample reason to believe that marijuana was not the only drug being
used by respondent and whatever drugs she was using were, by that time, significantly
interfering with her ability to parent. Thereafter, she consistently tested positive for marijuana
and periodically for cocaine, including a positive cocaine test just a few weeks before the
termination hearing. Indeed, it does not appear that petitioner ever had a negative drug test
during the entire time she was monitored.
Finally, respondent argues that she was in substantial compliance with her treatment plan.
She asserts that she was cooperative and took advantage of services. Although respondent was
somewhat compliant with her treatment plan she did not benefit from services. A parent must
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benefit from the services offered to the point where the children would no longer be at risk in the
parent’s custody. In re Gazella, 264 Mich App 668, 676; 692 NW2d 708 (2005). Respondent
also has the burden of showing evidence of an improved home, In re Kantola, 139 Mich App 23,
28; 361 NW2d 20 (1984), which she did not do. Respondent’s efforts were not sufficient to keep
the children safe from harm or ensure their proper care.
Affirmed. 1
/s/ Douglas B. Shapiro
/s/ Henry William Saad
/s/ Kirsten Frank Kelly
1
The trial court did err in finding MCL 712A.19b(3)(c)(ii) proven by clear and convincing
evidence. However, the error was harmless because the court correctly terminated respondent’s
parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). In re Powers Minors, 244 Mich App
111, 118; 624 NW2d 472 (2000).
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