IN RE HERBERT/SHARP MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KH and TS, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
June 5, 2001
Petitioner-Appellee,
v
No. 228603
Allegan Circuit Court
Family Division
LC No. 98-022201-NA
BARBARA SHARP,
Respondent-Appellant,
and
HERBERT WENZEL,
Respondent.
Before: Collins, P.J., and Hoekstra and Gage, JJ.
PER CURIAM.
Respondent Barbara Sharp appeals as of right the circuit court’s order terminating her
parental rights to her two children, pursuant to MCL 712A.19b(3)(c)(i), (g), and (j); MSA
27.3178(598.19b)(3)(c)(i), (g) and (j). We affirm.
Respondent argues that the circuit court abused its discretion in admitting into evidence
the oral and written reports of service providers and relying on these reports in making its
decision, pursuant to MCR 5.974(F). She contends that the basis for seeking termination of her
parental rights was different from the reason the court took jurisdiction of the children, and the
court therefore should have considered only legally admissible evidence, pursuant to MCR
5.974(E). As this Court explained in In re Snyder, 223 Mich App 85; 566 NW2d 18 (1997),
where the basis for the court taking jurisdiction of a child is related to the basis for seeking
termination of parental rights, “legally admissible evidence (under the rules normally used in
civil proceedings) will already have been adduced at the adjudicative-phase trial, and thus
supplemental proofs, which are presented on a background of such legally admissible evidence,
need not be admissible under the Michigan Rules of Evidence.” Id. at 89-90. However, where
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the basis for the court taking jurisdiction is unrelated to the basis for seeking termination of
parental rights, the petition seeking termination of parental rights “lacks this background of
legally admissible evidence from the adjudicative phase and, thus, such a foundation must be laid
before probative evidence not admissible under the Michigan Rules of Evidence may be
considered.” Id. at 90.
Here, the original petition contained four allegations, three of which concerned only
Richard Sharp, respondent’s then husband. Two of those allegations concerned abuse of KH by
Sharp. The one allegation that concerned respondent stated that, despite the intervention of
services in which respondent had participated for almost one year, respondent’s children
continued to be at risk for abuse. Although respondent was not represented by counsel at the
adjudicative phase, she was informed of her right to counsel and of her right to request courtappointed counsel if she could not afford to retain counsel, and she opted to proceed without
counsel. Respondent admitted the allegations in the petition, and the court accepted her plea and
assumed jurisdiction over the children. The petition to terminate respondent’s parental rights,
which was filed after KH had been injured twice by respondent’s live-in boyfriend and had been
removed from respondent’s custody, alleged that respondent failed to avail herself of or benefit
from services offered and that she failed to maintain adequate and safe housing, having continued
to reside with a man who had physically and emotionally abused KH.
We find that the second petition is not based on changed or different circumstances, even
though respondent was separated from her husband and lived with a boyfriend at the time the
petition was filed. Rather, the basis for the court taking jurisdiction of the children was related to
the basis for seeking termination of respondent’s parental rights. Snyder, supra at 89. Both
petitions alleged that, despite numerous services provided, respondent’s children continued to be
at risk for abuse. Because the circumstances as they related to respondent had not changed, the
circuit court did not err in determining that MCR 5.974(F) applied to the termination proceedings
and thus did not abuse its discretion in admitting into evidence all relevant and material evidence,
including oral and written reports. MCR 5.974(F)(2). Moreover, respondent’s counsel did not
object to the admission of these reports and had the opportunity to cross-examine either the
makers of the reports or the witnesses who offered the reports for admission.
Respondent next argues that the court clearly erred in ruling that there was clear and
convincing evidence to establish a statutory ground for termination of her parental rights. This
Court reviews the court’s findings of fact in a parental rights termination case under the clearly
erroneous standard. MCR 5.974(I); In re Sours, 459 Mich 624, 633; 593 NW2d 520 (1999).
Once petitioner establishes at least one statutory ground for termination by clear and convincing
evidence, the court must terminate parental rights unless there exists clear evidence that
termination is not in the child’s best interests. MCL 712A.19b(5); MSA 27.3178(598.19b)(5); In
re Trejo, 462 Mich 341, 364-365; 612 NW2d 407 (2000). The court’s decision that a ground for
termination has been proven by clear and convincing evidence and its decision regarding the
children’s best interests are reviewed for clear error. Id. at 356-357.
Respondent first contends that the circuit court clearly erred in deciding that MCL
712A.19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i) had been established. Respondent maintains
that there was no “condition” that existed regarding her at the initial disposition and, therefore,
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no “conditions that led to the adjudication” could “continue to exist.” This argument mirrors
respondent’s previous argument that her parental rights were terminated on the basis of an
entirely different ground than that which led to the adjudication. However, as discussed above,
the condition concerning respondent that led to the adjudication, her failure to protect her
children from the risk of abuse despite the intervention of numerous services, also led to the
petition requesting termination of her parental rights. Moreover, more than 182 days had elapsed
since the initial dispositional order, and the condition continued to exist. Because respondent
was no longer participating in services, there was no reasonable likelihood that the condition
would be rectified within a reasonable time. Accordingly, and the court did not err in finding
that this statutory basis for termination of parental rights had been established.
Respondent alternatively maintains that the circuit court improperly accepted her
admission at the initial adjudication, because no factual basis was established to support her plea
of parental misconduct, as required by MCR 5.971(C)(2). According to respondent, it would be
unfair to construe her acquiescence to adjudication as an admission of a “condition” of parental
misconduct because she is mentally limited, she participated in the adjudication without the
assistance of counsel, the referee stated that there were “no allegations in regards to the Mother
on the petition,” and the FIA worker told her that “the reason we’re in court on this case is due to
substantiation of physical abuse by the father.”
Here, respondent is attempting to collaterally attack the jurisdiction of the circuit court
over this matter. Jurisdiction in parental rights cases can be challenged only on direct appeal, not
by a collateral attack. In re Powers, 208 Mich App 582, 587; 528 NW2d 799 (1995).
Respondent neither directly appealed the circuit court’s exercise of jurisdiction nor requested a
rehearing of this issue as provided by MCL 712A.21; MSA 27.3178(598.21) and, therefore, may
not now challenge the court’s exercise of jurisdiction. Id. at 587-588.
Next, respondent argues that the court erred in finding that MCL 712A.19b(3)(g); MSA
27.3178(598.19b)(3)(g) had been established. Respondent contends that petitioner had a
continuing duty to use reasonable efforts to reunite her with her children even after both children
had been removed from her custody, and that if reasonable efforts had been used she would have
been able to provide proper care and custody for her children.
Although many services were stopped when KH was removed from respondent’s care and
respondent’s income fell substantially because she lost KH’s social security payments,
respondent also refused services offered to her during this period. Her visitations with her
children were not consistent, and she did not focus on her children during the visits. Respondent
chose not to participate in counseling services and stopped attending services that were meant to
help her acquire her high school diploma. Respondent’s living conditions deteriorated in terms
of suitability for her children because of the number of people she lived with and the character of
those people, including her boyfriend, who had hurt KH. The foster care worker testified that she
told respondent that it would not be possible to continue a relationship with this boyfriend and
regain custody of her children, yet respondent chose to have this boyfriend in her home.
Moreover, KH was injured a number of times while in respondent’s care. Although there were
no allegations that respondent caused the injuries, she failed to protect KH despite the years of
services that she had been provided, and when KH’s collar bone was broken, respondent did not
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seek medical attention until the third day after the injury. We conclude, therefore, that the court
did not err in determining that respondent had failed to provide proper care and custody for her
children and there was little likelihood that she would be able to do so within a reasonable time.1
Finally, respondent argues that the circuit court erred in finding that the children would be
harmed if returned to her care.
MCL 712A.19b)(3)(j); MSA 37.3178(598.19b)(3)(j).
Respondent maintains that none of the social workers or lawyers properly assessed the risk posed
by her boyfriend and thus she, as a “limited” individual, could not reasonably have been expected
to recognize the risk. She further contends that there was no evidence that the delay in having
KH seen by a doctor created any significant risk of harm to him or that the circumstances of such
an accident are likely to arise in the future. At the same time, respondent does not advocate
immediately returning the children to her care but asks this Court to compel petitioner to
reasonably assist her in finding decent housing and reconstructing her support network.
While we agree that the record shows respondent did not intend to hurt her children and
that she does require some assistance in day-to-day living because of her intellectual limitations,
KH was injured at least twice when respondent lived with her husband and at least twice when
she lived with her boyfriend. Respondent failed to seek medical attention for KH’s broken collar
bone for three days. These circumstances plainly created a significant risk of harm to KH and
indicate that such “accidents” are likely to arise in the future if the children were returned to
respondent’s care. Thus, the court did not err in finding that this statutory basis for termination
had been established by clear and convincing evidence.
Respondent’s final argument is that the court clearly erred in not finding that termination
of her parental rights was against the children’s best interests. She maintains that the evidence
showed that she took positive actions to serve her children’s best interests. Our review of the
record shows that while there clearly existed a bond between respondent and her children, she
also had difficulty handling two children, and her failure to appropriately supervise and intervene
to prevent harm put her children at risk. Accordingly, we conclude that the circuit court did not
err in finding that no clear evidence, based on the whole record, that termination of respondent’s
parental rights was not in the children’s best interests. Thus, having found that statutory grounds
for termination had been proven by clear and convincing evidence, the court was required to
terminate respondent’s parental rights. Trejo, supra at 354.
Affirmed.
/s/ Jeffrey G. Collins
/s/ Joel P. Hoekstra
/s/ Hilda R. Gage
1
We note respondent’s argument that the petition alleges her inability to maintain stable
employment, which was not required by the parent-agency agreement or the family court. This
argument is accurate; however, respondent’s inability to maintain employment was not the focus
of the family court’s decision to terminate her parental rights.
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