IN RE SMITH/DULANEY MINORS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of R.S., JR., JES.S., D.S., A.S. and
JER.S., Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
November 16, 2001
Petitioner-Appellee,
v
No. 230661
Ionia Circuit Court
Family Division
LC No. 99-000072-NA
RANDY SMITH,
Respondent-Appellant,
and
TERESA SMITH,
Respondent.
In the Matter of J.D., Minor.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 230710
LC No. 99-000077-NA
MARK OXENDALE,
Respondent-Appellant,
and
TERESA SMITH,
-1-
Respondent.
In the Matter of R.S., JR., JES.S., D.S., A.S.,
JER.S., and J.D., Minors.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
No. 231371
LC Nos. 99-000072-NA;
99-000077-NA
TERESA SMITH,
Respondent-Appellant,
and
RANDY SMITH and MARK OXENDALE,
Respondents.
Before: Holbrook, Jr., P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
Following a contested hearing, the family court terminated the parental rights of
respondents Randy Smith and Teresa Smith to their five children, R.S., J.R., Jes.S., D.S., A.S.
and Jer.S., pursuant to MCL 712A.19b(3)(b)(i), (b)(ii),1 (c)(i), (c)(ii), (g) and (j), and terminated
the parental rights of Teresa Smith and Mark Oxendale to their child, J.D., pursuant to MCL
712A.19b(3)(g) and (j). Respondents Randy Smith and Mark Oxendale each appeal as of right,
and respondent Teresa Smith appeals by delayed leave granted. The appeals have been
consolidated for our consideration. We affirm.
Docket No. 230661
Respondent Randy Smith argues that the family court clearly erred in finding that
termination of his parental rights was in the children's best interests. We disagree. Once the
petitioner satisfies its burden of proving a statutory ground for termination by clear and
1
Only Teresa Smith’s parental rights were terminated under § 19b(3)(b)(ii).
-2-
convincing evidence, "the court must issue an order terminating parental rights unless there exists
clear evidence, on the whole record, that termination is not in the child's best interests.” In re
Trejo Minors, 462 Mich 341, 354; 612 NW2d 407 (2000). We review a trial court’s finding
regarding the child's best interests for clear error. Id. at 364. “A finding is clearly erroneous
where the reviewing court is left with a firm and definite conviction that a mistake has been
made.” In re Jackson, 199 Mich App 22, 25; 501 NW2d 182 (1993).
The family court found that termination of Randy Smith’s parental rights was in the
children's best interests due to a long history of physical abuse and the little progress that
respondent had made in counseling, as well as the amount of time it would take before the court
could be satisfied that the children would be safe in his custody. The family court did recognize
that some progress was made after petitioner intervened, but it mostly occurred later in the
proceedings. Further, respondent failed to participate in a follow-up psychological evaluation to
assess the progress made. Viewed as a whole, we believe the evidence does not establish that
termination of respondent Randy Smith’s parental rights was not in the best interests of the minor
children.
Docket No. 230710
Respondent Oxendale first argues that the family court erred in finding that the statutory
grounds for termination were established by clear and convincing evidence, and in finding that
termination of his parental rights was in his child's best interests. We disagree.
The family court terminated respondent Oxendale's parental rights under §§ 19b(3)(g) and
(j). As the family court observed, the evidence showed that respondent Oxendale had not
protected his child when she lived with the Smiths, even though he was aware that there was
physical abuse in the home and that there was an unreasonable health risk due to the presence of
lead paint. Respondent Oxendale also maintained a relationship with the Smiths throughout
these proceedings, which justifiably caused the court to question whether he could protect the
child from the Smiths in the future. Furthermore, while respondent Oxendale sought custody of
his daughter, he unnecessarily and unreasonably delayed making the necessary changes to make
his home safe for the child, thereby negatively reflecting on his motivation and willingness to
care for the child. We conclude that the family court's findings with regard to the statutory
grounds for termination are not clearly erroneous and sufficiently establish that the grounds were
proven by clear and convincing evidence. In re Trejo, supra at 358.
Regarding the child’s best interests, the evidence showed that respondent’s bond with the
child did improve during the course of the proceedings. Nonetheless, the evidence still raised
doubts concerning respondent’s commitment to the child over the long term, and whether he was
prepared to care for a small child on his own. Further, the evidence indicated that the child had
behavioral problems and that respondent would require extensive assistance to ensure that he
could handle the day-to-day responsibilities involved. Considering these facts, along with the
child's young age and the lack of stability in her life up to this point, we believe the evidence
does not establish that termination of respondent Oxendale’s parental rights was not in the best
interests of the minor child.
-3-
Respondent Oxendale also argues that his right to due process was violated because the
family court did not advise him of his right to counsel until the time of the permanency planning
hearing. We disagree. The record shows that the trial court followed the dictates of the court
rules. MCR 5.915(B)(1) states:
(a) At respondent’s first court appearance, the court shall advise the
respondent of the right to retain an attorney to represent the respondent at any
hearing conducted pursuant to these rules and that
(i) the respondent has the right to a court-appointed attorney if the
respondent is financially unable to retain counsel, and,
(ii) if the respondent is not represented by an attorney, that the respondent
may request and receive a court-appointed attorney at any later hearing.
MCR 5.903(C)(8) defines a respondent in child protective proceedings to mean “the parent who
is alleged to have committed an offense against a child or as defined in MCR 5.974(B).”
Allegations were not raised against respondent Oxendale until the amended petition was filed in
September 2000. MCR 5.974 applies when termination of parental rights is sought. Pursuant to
this court rule, respondent includes “the father of the child as defined by MCR 5.903(A)(4).”
MCR 5.974(B)(2). Because respondent Oxendale was the legal father of J.D., MCR
5.903(4)(d)(i), the court was required to inform him of his right to counsel once petitioner sought
termination of his parental rights. Respondent was informed of this right, and counsel was
appointed to represent him.
Respondent Oxendale nonetheless argues that the court's decision not to appoint counsel
earlier in the proceedings violated his right to due process. Contrary to what respondent
suggests, the Fourteenth Amendment does not require that counsel be appointed for a respondent
in every neglect or parental rights termination proceeding. Lassiter v Dep't of Social Services of
Durham Co, North Carolina, 452 US 18, 31-32; 101 S Ct 2153; 68 L Ed 2d 640 (1981); In the
Matter of Perry, 148 Mich App 601, 615-616; 385 NW2d 287 (1986). Further, “[t]he process
that is due under the Fourteenth Amendment is not susceptible to precise definition and,
therefore, must be determined on a case-by-case basis . . . .” In the Matter of Perry, supra at 615.
Here, respondent was not charged with committing any offense against the child, and
until petitioner began to proceed towards termination of respondent’s parental rights, respondent
was not at risk of losing his parental rights to the child. Additionally, respondent was allowed to
participate in the proceedings, and has not shown that, had an attorney been appointed earlier,
there is a reasonable likelihood that the result of the case would have been different.
Accordingly, the family court did not err in terminating respondent Oxendale's parental rights to
his child.
Docket No. 231371
Respondent Teresa Smith argues that the family court erred in terminating her parental
rights to her six children. We disagree. The evidence adduced below established a long history
of physical abuse of the children, which respondent either condoned or sometimes participated
-4-
in. While respondent showed some progress in addressing the underlying problems that brought
her family to the attention of petitioner, such progress was insufficient to assure the children's
safety and to meet their emotional needs. We also note, these changes did not occur until the end
of the proceedings, when termination of her parental rights was imminent. It is also significant
that respondent refused to participate in a follow-up psychological examination to assess whether
any progress was made during the short period of time she was in counseling. The children could
not wait any longer to see whether respondent would be able to progress to the point where it
would be safe for the children to return to her custody.
Based on this record, we conclude that the family court did not clearly err in finding that
the statutory grounds for termination had been established. Further, the record does not show
that termination of respondent Teresa Smith’s parental rights was not in the best interests of the
minor children.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
