IN RE MALONEY MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JONI and TIFFANI MALONEY,
Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
November 17, 2000
Petitioner-Appellee,
v
No. 226111
Ottawa Circuit Court
Family Division
LC No. 99-032273-NA
JON MALONEY and LINDA MALONEY,
Respondents-Appellants.
Before: Neff, P.J., and Murphy and Griffin, JJ.
PER CURIAM.
Respondents appeal as of right from the trial court's February 10, 2000 order terminating
their parental rights to their two youngest daughters, then aged ten and twelve. The court found
that clear and convincing evidence supported termination pursuant to MCL 712A.19b(3)(c)(i)
and (g); MSA 27.3178(598.19b)(3)(c)(i) and (g). Respondents argue that the court erred in
finding that termination was supported because their household was otherwise deemed fit for
their two older children, and because the only evidence supporting termination was the testimony
of the two girls that they did not want to return home. We disagree and affirm the termination
order.
The family came to the attention of Ottawa County Protective Services on February 10,
1999, through referrals from the three schools attended separately by the two girls and their then
fourteen-year-old sister. Each referral involved the same allegation, that the girls had packed
their belongings, brought them to school, and had informed school personnel that they refused to
go home until things changed. Following a preliminary hearing, the court took jurisdiction and
the three girls were placed with relatives. One month later respondents pleaded "no contest" to
allegations contained in an amended petition. A son, two years older than respondents' eldest
daughter, remained with respondents and was never subject to the court's jurisdiction.
After a year of unsuccessful attempts to resolve the issues surrounding the family through
individual and family therapy sessions, counsel for the two youngest girls filed for termination of
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respondents' parental rights.1 The court held a termination hearing over two days, taking
testimony including that of respondents, all four children, and three counselors from Bethany
Christian Services, each of whom had at one time or another had conducted family therapy
sessions.
Respondents and the older children testified that the family's living conditions had
improved and that respondents had adjusted their lifestyle such that it was appropriate for the
younger girls to return home. The two younger girls, meanwhile, testified that they were happy
living with their cousin and were finally doing well in school. They testified that counseling had
been useless because respondents had not admitted responsibility for the problems which had led
the girls to leave the home. They also believed that nothing had truly changed and that if they
were returned home respondents would fall back into the same bad habits. Each of the
counselors testified that the family therapy sessions had seen little or no progress, due primarily
to respondents' attitudes and hindering behavior. Each counselor testified that further efforts at
therapy would be futile because of the breakdown in communication, and each recommended
that the younger girls not be returned home. The court took the matter under advisement and one
week later issued the termination order from which respondents now appeal.
A two-prong test applies to a decision of the family division of circuit court to terminate
parental rights. "First, the probate court must find that at least one of the statutory grounds for
termination, MCL 712A.19b; MSA 27.3178(598.19b), has been met by clear and convincing
evidence." In re Jackson, 199 Mich App 22, 25; 501 NW2d 182 (1993). We review the family
court's decision for clear error. MCR 5.974(I); In re Miller, 433 Mich 331, 337; 445 NW2d 161
(1989); In re Sours Minors, 459 Mich 624, 633; 593 NW2d 520 (1999). 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 had been made. Miller, supra. Once a statutory ground for termination
of parental rights is established, the court must terminate parental rights unless it finds that
termination of parental rights to the child is clearly not in the child's best interest. MCL
712A.19b(5); MSA 27.3178(598.19b)(5); MCR 5.974(E)(2); In re Trejo, 462 Mich 341, 364365; 612 NW2d 407 (2000).
Respondents challenge the trial court's findings that clear and convincing evidence
supported termination under the identified statutory provisions. Those subsections, MCL
712A.19b(3)(c)(i) and (g); MSA 27.3178(598.19b)(3)(c)(i) and (g), provide:
(3) The court may terminate a parent's parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
***
(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
1
Respondents' eldest daughter had returned home at her own insistence eight months after
leaving. Because she opposed termination of parental rights the court appointed her separate
counsel.
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dispositional order, and the court, by clear and convincing evidence, finds either
of the following:
(i) The conditions that led to the adjudication continue to exist and
there is no reasonable likelihood that the conditions will be rectified within
a reasonable time considering the child's age.
***
(g) The parent, without regard to intent, fails to provide proper care or
custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the
child's age.
In support of their claim that the conditions which led to adjudication no longer exist,
respondents point to the FIA caseworker's testimony that based on their current living situation a
petition similar to the one respondents pleaded to could not have been filed at the time of the
termination hearing. However, the trial court appropriately found that respondents' living
arrangement was a false indicator of their success in addressing the conditions which led to
adjudication. As the court identified, those conditions were an "inability to maintain a home of
their own, and inability to maintain employment and budget properly so as to maintain the
home." That respondents were living with their two older children in a clean home at the time of
the termination hearing was due only to the graciousness of a friend, Faith Koenes, who allowed
the family to stay in her home. Respondents had no significant responsibility for basic bills such
as rent, utilities or groceries, and purportedly owed their ex-landlord almost $6,000 in unpaid rent
and cleaning charges. Furthermore, despite a year to address the identified concerns, respondentmother remained unemployed and respondent-father maintained only an unstable pattern of serial
part-time employment. Given respondents' failure to secure meaningful employment in the face
of these proceedings, and the family's decade long history of repeated movement within and
between Michigan and North Carolina, we conclude that the trial court did not err in finding that
respondents' pattern of providing an unstable home environment would "be repeated as soon as
the Court is out of the picture, or as soon as Faith Koenes gets tired of supporting the Maloneys."
Accordingly, clear and convincing evidence supported termination under § 19b(3)(c)(i).
Regarding § 19b(3)(g), the evidence overwhelmingly demonstrated a breakdown in the
relationship between respondents and their two youngest daughters. The two girls were
unequivocal in their testimony that they did not want to return to respondents' care because they
believed the family's home environment would swiftly revert to the problematic state which
originally led to their departure. Each of the counselors involved in the case recommended that
the girls not be returned at the time of the hearing, and each counselor also testified that further
counseling was unlikely to be beneficial. The counselors testified that the two girls had put
legitimate efforts into the process, and had not simply been unwaveringly pessimistic, but that
respondents had been hostile and non-compliant with both therapist teams. The counselors also
testified that respondent-father had blatantly hindered success in the process by regularly
exhibiting controlling and manipulative behavior during counseling sessions. The counseling
reports indicated that beyond accepting minimal responsibility for past conduct, respondentfather refused to allow the girls to address the problems that led to their decision to leave.
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Respondent-father asserted during sessions that such issues were in the past and should be
forgiven and that all that needed to be discussed were future efforts. The court did not clearly err
in finding that based on respondents' conduct in counseling, the relationship was broken to the
extent that further intervention would be futile.
This conclusion is not impacted by the fact that respondents' eldest daughter, the leader of
the exodus, chose to return to respondents' home midway through these year long proceedings.
Unlike the younger girls, who comfortably settled into the relative placement and began to thrive
at home and at school, respondents' eldest daughter left the relative placement due to conflicts
and moved through two unsuccessful foster placements before demanding to return to
respondents. This return, though authorized by the court because of the child's age, was not
approved by any of the counselors involved in the case and cannot be considered a valid indicator
of allegedly improved conditions and parenting skills.
The prior home environment alleged by all three girls involved physical, mental and
emotional abuse. In addition to conditions attributable to financial difficulties, the girls clearly
identified concerns regarding respondents' parenting skills and lifestyle choices. At the time of
the termination hearing, despite continuing financial strife, respondents did present a credible
picture of a commendable change in lifestyle. However, respondents' unwavering refusal to
address the previously problematic lifestyle during counseling foreclosed any chance that the two
younger girls would feel their concerns had been addressed.
Viewed in their entirety, the proofs not only present clear and convincing evidence that
respondents failed to provide proper care and custody, but also represent clear and convincing
evidence of no reasonable expectation that they would be able to do so within a reasonable time
considering the girls' ages. The court did not err in concluding that termination was also
supported by § 19b(3)(g).
Affirmed.
/s/ Janet T. Neff
/s/ William B. Murphy
/s/ Richard Allen Griffin
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