IN RE JUSTIN WHEATLEY MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JUSTIN WHEATLEY, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
February 8, 2002
Petitioner-Appellee,
v
No. 235288
Branch Circuit Court
Family Division
LC No. 00-001595-NA
KENNETH WHEATLEY,
Respondent-Appellant.
and
PATRICIA CASTLEBERRY,
Respondent.
Before: Gage, P.J., and Hoekstra and Meter, JJ.
PER CURIAM.
Respondent-appellant (“respondent”) appeals by right from the family court’s order
terminating his parental rights to a minor child, Justin Wheatley,1 under MCL 712A.19b(3)(c)(ii)
(“[t]he 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 . . . [that] other conditions [than those that led to the adjudication]
exist that cause the child to come within the court’s jurisdiction, the parent has received
recommendations to rectify those conditions, the conditions have not been rectified by the parent
after the parent has received notice and a hearing and has been given a reasonable opportunity to
1
Justin’s date of birth is May 21, 1992.
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rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age”).2 We affirm.
This Court reviews for clear error a family court’s finding that a statutory basis for
termination has been met. MCR 5.974(I); In re Trejo Minors, 462 Mich 341, 356-357; 612
NW2d 407 (2000). Once a statutory basis has been proven by clear and convincing evidence, the
court must terminate parental rights unless the court finds that termination is clearly not in the
best interests of the child. Trejo, supra at 344, 355. A court’s finding on the best interests prong
is also reviewed by this Court for clear error. Id. at 356-357, 365.
Here, the original petition, dated May 30, 2000, alleged that respondent had “a history of
self-harm, overdosing on medication, attempting to hang himself, and . . . cutting his wrist” and
that the latter two incidents occurred in Justin’s presence. The termination petition, dated May 3,
2001, additionally alleged that respondent and his wife, Kelly3 Wheatley, were being investigated
for the improper care of the three additional children4 in their home5 and that respondent failed to
attain success with counseling, remarked to Justin during visitation that he (Justin) was to blame
for their current circumstances, failed to obtain employment, and failed to obtain suitable
housing. The family court concluded that the additional allegations warranted termination,
particularly the fact that Kelly, with whom respondent had reunited during the course of the
proceedings, did not treat Justin appropriately. The court further noted that respondent and Kelly
didn’t “recognize the problem” and believed themselves “cured” of parenting deficiencies.
Finally, it noted that respondent “ha[d]n’t worked very hard for Justin.”
Respondent contends that the family court clearly erred in terminating his parental rights
because petitioner presented no proof that respondent performed poorly in counseling, made
inappropriate remarks to Justin, was ordered to obtain employment, or, along with Kelly, was
subject to an additional Child Protective Services investigation. Respondent argues that the only
allegation in the termination petition with any merit was the allegation that he failed to obtain
suitable housing. According to respondent, this allegation was insufficient to support termination
because he was never given notice, a hearing, and an opportunity to reform himself with regard
to the lack of suitable housing issue. See MCL 712A.19b(3)(c)(ii).
We disagree with respondent’s argument. Indeed, the following amply supported the
family court’s decision in this case: (1) the testimony by a social worker, Stephanie Ayscue, that
at the beginning of the proceedings, respondent had been ordered to find a suitable job and
2
The parental rights of Justin’s mother, Patricia Castleberry, were terminated on grounds of
desertion, and she has not appealed that ruling.
3
“Kelly” is spelled alternatively as “Kelli” in parts of the record. We use the spelling contained
in respondent’s appellate brief.
4
Two of these children are respondent’s biological children; one is a stepchild.
5
Respondent and Kelly were separated at the time the initial petition was filed but later reunited
and resided, at the time of the termination hearing, in respondent’s one-bedroom apartment with
their three additional children.
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housing but had done neither; (2) Ayscue’s testimony that there was an ongoing Child Protective
Services investigation regarding the other children residing with respondent and Kelly; (3) the
testimony by a therapist, Bernie Giles, that respondent showed poor decision-making ability with
regard to regaining custody of Justin and would continue to reunite with Kelly after breakups,
even though he knew that she behaved inappropriately in front of children; (4) the testimony by a
social worker, David Babcock, that part of the reason the initial petition was filed was because
Kelly treated Justin inappropriately and refused to care for him; (5) respondent’s admission that
recently he had received an eviction notice for having an overcrowded apartment; (6)
respondent’s admission that when he was hospitalized after a suicide attempt, Kelly cared for her
three children but Justin had nowhere to go; (7) Kelly’s admission that during respondent’s
hospital stay, she called her mother to retrieve Justin from respondent’s home instead of getting
him herself; (8) Kelly’s admission that her and respondent’s apartment was inappropriate for the
entire family; (9) Kelly’s admission that she refused to let Justin in the family home one day and
that the police were summoned as a result; and (10) Kelly’s admission that she had wanted
respondent to find a babysitter for Justin.
In light of the foregoing evidence, and giving due regard to the family court's special
ability to judge the credibility of the witnesses before it, see MCR 2.613(C) and In re Miller, 433
Mich 331, 337; 455 NW2d 161 (1989), we simply cannot say that the court clearly erred in
concluding that a statutory basis for termination existed and that termination of respondent’s
parental rights was in the best interests of the child. Indeed, Ayscue testified that respondent had
been ordered to obtain a suitable home for Justin. The evidence showed that respondent failed to
do so, both by virtue of the overcrowded nature of the family apartment and by virtue of his
reunion with a woman who failed to treat Justin appropriately. While it is true that certain
witnesses testified favorably about respondent’s ability to parent, we nonetheless find no basis to
reverse the family court’s decision, in light of the evidence set forth above.6
Affirmed.
/s/ Hilda R. Gage
/s/ Joel P. Hoekstra
/s/ Patrick M. Meter
6
We note that this evidence is gleaned from the transcripts of the permanency planning hearing
as well as the transcript of the termination hearing. In child protective proceedings, evidence
from all prior hearings may be considered by the family court in ruling on a termination request.
See, e.g., In re Harmon, 140 Mich App 479, 481; 364 NW2d 354 (1985).
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