IN RE DIAMOND SHIANN REID MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of DSR, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
March 2, 2001
Petitioner -Appellee,
v
No. 224098
Wayne Circuit Court
Family Division
LC No. 90-288479
PATRICIA ANN REID,
Respondent -Appellant,
and
DONALD OWENS ALLEN, JR.,
Respondent.
Before: Whitbeck, P.J., and Murphy and Cooper, JJ.
PER CURIAM.
Respondent-appellant Patricia Ann Reid appeals by delayed leave granted.1 She
challenges the family court’s order terminating her parental rights to her daughter, DSR, pursuant
to MCL 712A.19b(3)(c)(i), (g), and (j); MSA 27.3178(598.19b)(c)(i), (g), and (j). We affirm.
I. Basic Facts And Procedural History
The original petition filed in this case alleged: Reid is addicted to crack cocaine; both
Reid and DSR tested positive for cocaine when DSR was born on November 5, 1997;2 Reid was
1
Donald Owens Allen, Jr., is DSR’s putative father. The family court terminated his parental
rights pursuant to MCL 712A.19b(3)(a)(ii); MSA 27.3178(598.19b)(a)(ii) for deserting his
daughter. He does not appeal.
2
There was no evidence that DSR suffered from any health or developmental problems because
of her exposure to cocaine before birth.
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discharged from a substance abuse treatment program after she failed to comply with program
requirements; on December 7, 1997, Reid left DSR with friends and failed to return for her;
Reid’s mother, DSR’s maternal grandmother, had custody of Reid’s three older children; Reid’s
whereabouts was unknown.
The FIA evidently made contact with Reid soon after this preliminary hearing. The lower
court record reflects that Reid entered into a parent/agency agreement with the FIA on
January 26, 1998. The agreement articulated eleven goals for Reid. Reid would: (1) attend
scheduled visits; (2) obtain suitable housing within 180 days and maintain it for no less than six
consecutive months; (3) obtain, maintain, and document legal income; (4) attend all court
hearings and comply with all recommendations; (5) make weekly contact with her case manager
at Orchards Children’s Services, the agency serving Reid on behalf of the FIA; (6) attend,
complete, and certify her participation in parenting classes; (7) undergo drug screening within
thirty days; (8) attend, complete, and certify her participation in an in-service substance abuse
treatment program that would be three months in duration or as long as recommended by
program staff; (9) remain drug and alcohol free, as confirmed by tests; (10) participate in three
months’ therapy, or for as long as recommended, to start within thirty days; (11) attend and
document her participation in Narcotics Anonymous/Alcoholics Anonymous (NA/AA) three
times a week. The agreement also included the names of the agencies where Reid could receive
the services necessary to meet these goals.
Reid appeared at the adjudication on January 29, 1998, and, after being advised of her
rights, she admitted to the allegations in the petition. She explained that she was residing in a
substance abuse treatment facility in Holly, Michigan, and had been there for the two previous
weeks. She expected to complete the forty-day program and noted that she believed that it had
been helping her.
Over the next twenty-one months, Reid participated in six different substance abuse
treatment programs, completed parenting classes, visited DSR, and attended Narcotics
Anonymous/Alcoholics Anonymous (NA/AA) meetings. However, she also tested positive for
cocaine several times and missed some of her random drug tests because she knew she would test
positive. Although she found several jobs, none lasted very long. At one point she found
suitable housing, but that opportunity ultimately did not work out. All the while, DSR remained
in foster care.
The supplemental petition seeking termination, filed on January 22, 1999, restated the
original allegations and the terms of the parent/agency agreement. The petition further stated that
“[t]he parents have been inconsistent and non-compliant in their adherence to treatment plan
provisions. Birth family visits have been sporadic, the mother does not have a legal source of
income, she does not have suitable housing, and she has admitted to drug abuse on November 5,
1998, and during the weekend of November 13[,] 1998.” By the time the family court held the
termination hearing on October 1, 1999, Reid had admitted herself to a seventh drug treatment
program because she was again using cocaine. According to Rebekah Visconti, the Assistant
Attorney General representing the FIA, Reid’s case worker at the new treatment program,
Barbara Presnow, stated that Reid would need at least six months of inpatient treatment followed
by another six months of outpatient treatment. When Richards testified, she recounted Reid’s
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progress and relapses with her drug problem as well as the requirements under the parent/agency
agreement. She confirmed Presnow’s recommendation for treatment, including NA meetings
and random drug screens for the rest of Reid’s life following the treatment program, but stated
that Presnow did not predict a good outcome for Reid because of her history of relapses.
Richards also noted that there was a problem with admitting Reid into the newest treatment
center because she had already been in inpatient treatment for longer than the time permitted by
Detroit’s managed care program. Reid was only eligible for thirty days of inpatient care followed
by fifteen days of outpatient care.
As for Reid’s compliance with the parent/agency agreement, Richards said that Reid had
not fulfilled all the goals. Reid called Richards fairly regularly, completed parenting classes,
completed two of the substance abuse treatment programs she participated in, visited DSR about
seventy-five percent of the time, and improved her bond with the baby. However, Reid tested
positive for drugs more than once, did not complete random drug tests as required, was unable to
hold a job for more than a month or two, did not have stable housing despite financial assistance,
and failed to document her attendance at NA/AA meetings if and when she did attend.
When Reid testified, she said that she was benefiting from the new treatment program at
Hutzel, she had no desire to use drugs again, she felt confident she would be able to complete the
program successfully, and she was willing to comply with outpatient treatment. She said that she
felt a bond to DSR and that, having completed parenting classes, she would be able to care for
her baby. Reid acknowledged that she had a choice when it came to using drugs. She learned
that if she were using drugs, she could not provide a healthy environment for a child. Further,
she knew that using drugs while pregnant was dangerous to the fetus, but she had used drugs on
more than one occasion while pregnant. She said that she had shown Richards proof that she had
attended NA/AA meetings, but that Richards had failed to make a copy of her documentation.
Reid claimed that the stress of being homeless and a single parent were two factors that
contributed to her relapses into drug use. Reid explained that her failure to comply with at least
two drug tests was because she lacked transportation and had not received the bus tickets the FIA
ordinarily provided. She candidly admitted that other times she did not undergo drug testing
because she would have likely tested positive and she “didn’t want to” take the tests. Reid
conceded that she had been using drugs for twelve years, which was one reason why her mother
had guardianship of her other children.
Reid said that she made efforts to find housing but, on at least one occasion, the FIA
failed to provide the advance rent the landlord wanted, so she lost the apartment. She tried to get
into shelters, but could not get in each time. She could not recall a time when she refused to
enter a shelter that was available to her. She also said that she tried to find a job, but was unable
to keep a job because of her uncertain housing. She ended her direct testimony by stating that
she wanted to care for DSR. The letter she introduced into evidence at the hearing reiterated this
point, stating:
I’m writing this [to] plead to the Court because I would like to have
another chance to Have [DSR] back into My custody. I’m willing to do whatever
it takes to have her back. She’s My child and I love her with all my heart. So
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please don’t take her Away from me. I’m willing to do whatever.
treatment at this time and will stay here as Long As Recommended.
I’m in
After reciting Reid’s history of drug use, rehabilitation, and relapse, the family court
proceeded to make findings concerning each of the grounds alleged in the supplemental petition.
The family court found clear and convincing evidence to terminate Reid’s parental rights under
subsection (c)(i) because the conditions leading to adjudication, drug use and lack of housing,
continued to exist and she had no way to support DSR. Apparently, in the family court’s
opinion, nothing but Reid’s “bald promise” demonstrated that she would be able to refrain from
using drugs. Further, the family court stated:
The conditions as I stated, no housing, she’s in an inpatient [treatment]
program, no housing during the course of the wardship, drug usage through the
course of the wardship, drug usage while currently pregnant with another child as
she was with DSR a year and 10 months ago, or so.
That these conditions continue to exist and the Court finds that they will
not be rectified within a reasonable time considering the age of the child.
Commenting on the support for termination under subsection (g), the family court found that
Reid loved DSR, but she had “failed in everything” while the case was pending. In particular:
The mother during the period of wardship has failed to provide proper care
and custody for the child, and at the present time she has used drugs recently,
within a week, or at least it has been evidence within a week, that there is no
reasonable expectation considering the 6 drug programs that have not deterred her
from the usage of drugs, the child being out of her home, the court wardship, and
the court concludes that she will be unable to provide proper care and custody
within a reasonable time considering the age of the child.
The family court emphasized the amount of time Reid would need to have treatment, at least a
year, to underscore that DSR could not wait for parental support. The family court also found
that Reid’s history of drug use made it likely that DSR would be harmed if returned to her, which
merited termination under subsection (j).
Finally, the family court noted that termination was in DSR’s best interests because DSR
needs a competent parental figure, a caregiver, one who is free of drugs, one who
has an income, one who has housing, and one who will not relapse into drug
usage.
That the health, the physical, mental, emotional and developmental health
of the child must be served by such a caregiver, and this mother cannot do that.
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II. Standard Of Review
This Court reviews a trial court’s findings of fact supporting termination of parental
rights for clear error.3
III. Arguments on Appeal
Reid challenges all three statutory subsections the family court cited as grounds for
terminating her parental rights. However, she advances a substantive argument only concerning
subsections (c)(i) and (j). She effectively abandoned her appeal concerning subsection (g), which
concerns her failure to provide proper care and custody for DSR, because she failed to present
any argument concerning that subsection.4 The family court needed clear and convincing
evidence of only one statutory ground in order to terminate Reid’s parental rights.5 Reid, by
failing to challenge the family court’s factual findings and legal conclusions concerning
subsection (g), implicitly concedes that there was such evidence. If this were not enough to
affirm the family court’s order, Reid’s arguments concerning the other grounds for termination
lack merit.
IV. Conditions Leading to Adjudication
MCL 712A.19b(3)(c); MSA 27.3178(598.19b)(c) requires a family court to terminate a
parent’s parental rights if
the parent was a respondent in a proceeding brought under this chapter, 182 or
more days have elapsed since the issuance of an initial dispositional order, and the
court, by clear and convincing evidence, finds . . . 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.
Reid contends that the family court lacked sufficiently clear and convincing evidence to
terminate her parental rights under this subsection because she substantially complied with the
parent/agency agreement. Evidently, she intends to argue that her compliance with the
agreement indicates that she will cure the problems that originally led to the adjudication within a
reasonable time considering DSR’s age. She points out that at the time the family court
terminated her parental rights she had entered treatment, had prospects for housing, had a bond
with DSR, and was motivated to stop her drug habit. Furthermore, she had visited with DSR and
completed parenting classes.
3
MCR 5.974(I); In re Hall-Smith, 222 Mich App 470, 473, 564 NW2d 156 (1997), rejected on
other grounds by In re Trejo, 462 Mich 341, 352; 612 NW2d 407 (2000).
4
See Richmond Twp v Erbes, 195 Mich App 210, 220; 489 NW2d 504 (1992).
5
See Trejo, supra at 355.
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Nevertheless, the record in this case speaks for itself. Reid’s drug use was the primary
condition leading to the adjudication in this case. While Reid has been completely willing to
enter treatment programs, even completing two programs successfully, she has not been able to
make any progress toward permanently abstaining from drug use. She candidly admitted to
Richards and during her testimony at the termination hearing that she had relapsed into drug use
a number of times while this case was pending in the family court. This led her to avoid
complying with the order to undergo random drug testing.
Furthermore, whether Reid “substantially” complied with the parent/agency agreement is
in dispute. She attended most, but not all, scheduled visits with DSR. She failed to cancel some
of the visits she missed. Although Reid did maintain contact with Richards as required, there is a
dispute about whether she provided Richards with the documentation necessary to prove that she
was attending NA/AA meetings. Reid did find several jobs, but was never able to keep any job
for any significant period, much less the six consecutive months required under the agreement.
She failed to provide any proof that she had another legal source of income that would be
sufficient to support her and DSR. Reid’s participation in inpatient treatment may have
prevented her from finding suitable housing at certain times, but the record is clear that she never
occupied suitable housing with appropriate furnishings for the six consecutive months described
in the agreement. Reid did have legitimate medical excuses for missing the February and July
1999 hearings, but she also failed to attend other hearings as the agreement mandated.
In the best of all possible worlds, Reid’s testimony at the termination hearing that she was
benefiting from her most recent substance abuse treatment would suggest that she is likely to
recover fully from her drug problem within a reasonable amount of time. However, as Richards
and Presnow intimated, Reid’s prospects for this sort of improvement are not good in light of her
history of relapses. Further, even if it were available, the most appropriate treatment
recommended for Reid included six months of inpatient treatment followed by another six
months of outpatient treatment. If Reid did not relapse during this period, which would extend
this treatment further, she would not have been able to be reunited with DSR for at least six
months following the termination hearing. The reunion could have also been delayed past the
outpatient portion of the treatment while Reid was establishing a home in which to raise her
daughter.
Reid correctly cites In re Moore6 for the proposition that failure to comply with a
parent/agency agreement does not establish that there is neglect unless the services and steps
outlined in the plan “were actually needed to improve neglectful behavior . . . .” However,
Moore does not cover the facts of this case. The mother in Moore did not attend parenting
classes as required under the agreement.7 The Court concluded that that one failure did not merit
terminating the mother’s parental rights because the evidence on the record indicated that she
was a good parent, making parenting classes unnecessary.8 In contrast, the steps outlined in the
6
In re Moore, 134 Mich App 586, 598; 351 NW2d 615 (1984).
7
Id.
8
Id.
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parent/agency agreement Reid executed were necessary for her improvement as a parent because
she needed to improve in the areas identified in the agreement, especially with respect to her drug
use. Moreover, the point the Moore Court made in the portion of the opinion Reid cites is that
failure to comply with an agreement does not – alone – demonstrate neglect; there must be clear
and convincing evidence of actual neglect. As the facts detailed above indicate, there is clear and
convincing evidence that Reid did not remedy the conditions leading to the adjudication and
would not be able to do so within a reasonable time considering DSR’s age. Thus, there was
clear and convincing evidence of the conditions described in subsection (c)(i), a statutory ground
for termination.
Reid also suggests that termination was improper because she told Richards that she was
having problems dealing with her separation from DSR and her drug use and Richards failed to
offer her services to deal with these problems. The record suggests that while Reid was
participating in substance abuse treatment, she was offered counseling of some sort. Further, she
was also offered extensive services ranging from drug treatment and parenting classes to housing
assistance and supervised visits. While there may have been other services that Reid could have
benefited from, MCL 712A.18f; MSA 27.3178(598.19f) does not require the FIA to provide
every conceivable service to work toward reunifying her with DSR; MCL 712A.18f(4); MSA
27.3178(598.19f)(4) suggests that a parent need only be offered reasonable services. Unlike the
circumstances present in In re Newman,9 in which the individual assigned to help the parents
correct the conditions leading to the adjudication refused to do so, the services that the FIA
offered to Reid were calculated to help her with her individual problems. Thus, the alleged
absence of specific counseling services does not, in this case, contradict the clear and convincing
evidence supporting termination under subsection (c)(i).
V. Proper Care and Custody
MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(g) requires a family court to terminate a
parent’s parental rights if there is clear and convincing evidence that “[t]he 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.” As noted above, Reid’s brief on appeal does not articulate an
argument that appears to address this ground for termination.
Yet, to the extent that she intended for her argument concerning her substantial
compliance with the parent/agency agreement to apply to this statutory ground, the reasoning that
supported termination under subsection (c)(i) applies equally well here. There is no doubt that
Reid failed to provide proper care and custody for DSR when she left her daughter, who was only
a newborn, with friends and did not return to care for her. Reid conceded that her drug use
played a role in her ability to care for her other children. Further, despite the almost two years in
which to stop using drugs, she used cocaine less than a week before having termination hearing.
Although Reid was in a new treatment program at the time of the termination hearing, the family
court correctly observed that her history made it unlikely that she would make the necessary
9
In re Newman, 189 Mich App 61, 65-66; 472 NW2d 38 (1991).
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changes in a reasonable time, considering that DSR had already been a court ward for almost two
years.
Additionally, Reid’s partial compliance with the parent/agency agreement did not
demonstrate a realistic probability of any sort that she would be able to provide DSR with proper
care and custody. Not only was this a question of drug use, but Reid had also failed to find and
keep a home and job. She lacked the practical means to take care of DSR, even if she felt an
emotional bond with her. Thus, there is no reason to conclude that the family court erred in
finding clear and convincing evidence of this ground for termination.
VI. Harm
MCL 712A.19b(3)(j); MSA 27.3178(598.19b)(j) requires a family court to terminate a
parent’s parental rights if there is clear and convincing evidence that “[t]here is a reasonable
likelihood, based on the conduct or capacity of the child's parent, that the child will be harmed if
he or she is returned to the home of the parent.” Because Reid spent only a very short time with
DSR before she was placed in foster care, there is little evidence on the record concerning
whether DSR would be harmed if returned to Reid. However, the evidence of Reid’s ongoing
drug use and her initial abandonment of her baby fits within the type of “conduct or capacity”
that can signal a risk of future harm. Thus, it is impossible to conclude from the record that the
family court clearly erred when it found sufficient evidence that DSR might be harmed if she
were returned to her mother.
VII. Best Interests
MCL 712A.19b(5); MSA 27.3178(598.19b)(5) states that a trial court “shall order
termination of parental rights” if it finds clear and convincing evidence to terminate. In other
words, termination is mandatory once the court finds evidence of at least one statutory ground to
terminate.10 Only if the trial court finds evidence on the record as a whole that termination is not
in the child’s best interests can it refuse to terminate parental rights.11 Reid contends that her
bond with DSR made termination clearly contrary to DSR’s best interests. The flaw with her
argument is that this bond is only one part of the evidence on the record. There is far more
evidence that termination was in DSR’s best interests, supporting the family court’s conclusion
that DSR needs someone who can care for her, provide housing and income, and avoid drugs.
All the evidence suggests that Reid is not such a person. Thus, there is no way to conclude from
10
See In re IEM, 233 Mich App 438, 450-451; 592 NW2d 751 (1999).
11
See Trejo, supra at 353-354.
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the record that the family court erred when it concluded that termination was DSR’s best
interests.
Affirmed.
/s/ William C. Whitbeck
/s/ William B. Murphy
/s/ Jessica R. Cooper
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