IN RE EMILY MARIE BOZARTH MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of EMILY MARIE BOZARTH,
Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
December 7, 2006
Petitioner-Appellee,
v
No. 268621
Oakland Circuit Court
Family Division
LC No. 05-705965-NA
DENA MARIE MICHEL,
Respondent-Appellant.
Before: Murray, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating her parental rights to the
minor child under MCL 712A.19b(3)(g), (i), (j), (l), and (m). As with most fact-intensive cases
decided by a bench trial, we must apply a standard of review that is deferential to the trial court’s
findings of fact. And, of course, those findings of fact have a significant impact on the ultimate
conclusion reached by the trial court. In applying this standard of review, and recognizing this is
a close case, we are compelled to affirm.
I.
Facts and Procedural History
Respondent’s involvement with petitioner began in February 2003, when her two older
children were removed from her care due to environmental neglect of a serious nature. During
the 20-month proceedings involving those children petitioner provided respondent with services,
but she failed to comply. In September 2004, respondent voluntarily terminated her parental
rights to her older children after petitioner filed a termination petition.
One month later, in October 2004, respondent gave birth to the child at issue here.
Petitioner did not immediately file a petition requesting the court to take jurisdiction over the
child because the child remained in the hospital for two months due to her premature birth.
Instead, petitioner “opened a case” and began providing intensive services to respondent and the
child’s father, which they actively participated in. The child was eventually released from the
hospital to the care of respondent and the child’s father, and by all accounts respondent did well
by providing a clean, neat and appropriate home, the child appeared clean and appropriately
provided for, respondent appropriately interacted with and cared for the child, she was cognizant
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of the child’s needs, and she made sure that the child attended her many doctor appointments
despite not having her own transportation.
Despite continued compliance with services, in April 2005 petitioner filed a petition
requesting the court to terminate respondent’s parental rights to the child at the initial
disposition, which the court authorized after finding that a risk of harm existed based on
respondent’s past neglect of her older children and the concern about her ability to sufficiently
care for the child without services in her home. The court, however, allowed the child to remain
in the care of respondent and the child’s father with continued in-home services. Shortly
thereafter, the family was evicted from their home because of nonpayment of rent, and the child
was removed from their care. Significantly, respondent never indicated to her caseworker or the
service providers that the family was having problems maintaining their apartment, nor did she
seek assistance from them. The court subsequently assumed temporary jurisdiction over the
child after the father pleaded no contest to allegations of neglect stemming from the eviction.
The court allowed respondent parenting time with the child.
At the trial on the adjudication in late September 2005, testimony revealed that
respondent had maintained employment and independent housing in a one-room apartment for a
few months, which admittedly was not suitable for the child. Respondent was also participating
in counseling, parenting classes, and anger management classes, which she obtained on her own.
At the conclusion of the trial, the court found that, although respondent had made progress since
the termination of her rights to her older children, she remained unable to maintain housing or
provide proper care and custody for the child and concluded that the evidence supported
termination of respondent’s parental rights under MCL 712A.19b(3)(g), (i) and (l). Afterward,
respondent was allowed supervised visits with the child, wherein she continued to appropriately
care for and interact with the child.
Testimony during the hearing on the best interests determination held in January 2006
revealed that respondent continued to make significant progress following the adjudicative phase
of the proceedings, but, by her own admission, was not yet ready for the child to return to her
care. Specifically, she had maintained her employment and independent housing, although it
was not suitable for the child, completed parenting classes, and continued to attend counseling
and anger management classes to work on life skills, such as handling frustrating situations,
building self-esteem, and gaining independence. According to her service providers, respondent
had shown improvement in these areas and was motivated to make the necessary changes for the
child to return to her care. Her counselor and the custodial grandmother believed that
respondent, at some point, would be capable of caring for the child. In addition, a psychological
evaluation conducted after the adjudicative phase indicated that there remained a “reasonable
possibility” that the child could be returned to respondent’s care in the near future given her
significant efforts to rectify the circumstances that led to the child’s removal. That evaluation
recommended that respondent be given an additional six months with services to demonstrate an
ability to maintain suitable housing and employment. The evaluating psychologist opined that at
that time termination would not be in the child’s best interests.
Testimony at the best interests hearing, however, also revealed that respondent had not
yet bonded with the child, although the custodial grandmother believed there was a potential for
a bond. The grandmother also expressed concern about respondent’s continued failure to request
assistance when needed, especially when the child’s interests were at stake, and felt it would take
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“a while” for her to establish proper housing for the child and to demonstrate more development
in parenting and requesting assistance when needed. Even considering respondent’s progress,
the caseworker testified that she would not be able to provide proper care and custody for the
child within a reasonable time because she still did not have a “solid plan in place” for the child
even with intensive services, she continued to fail to seek assistance when needed to the child’s
detriment, and she had a pattern of behavior that was not rectifying.
After conducting a best interests hearing, the trial court reiterated that the evidence
supported termination of respondent’s parental rights under MCL 712A.19b(3)(g), (j), and (m).
The court then determined that termination was in the child’s best interests considering that
respondent still required a lot of assistance with housing and still had no plan in place for the
child, despite the lengthy time frame that services had already been in place, and that the child
had special needs and had not yet bonded with respondent. The court then proceeded to
terminate respondent’s parental rights, and this appeal ensued.
II.
Analysis
Respondent first claims that the trial court erred in terminating her parental rights because
the evidence did not clearly and convincingly establish a statutory ground for termination. We
disagree. In order to terminate parental rights, the trial court must find that at least one of the
statutory grounds for termination in MCL 712A.19b(3) has been met by clear and convincing
evidence. In re Jackson, 199 Mich App 22, 25; 501 NW2d 182 (1993), citing In re McIntyre,
192 Mich App 47, 50; 480 NW2d 293 (1991). “Once a ground for termination is established, 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, 462 Mich 341,
354; 612 NW2d 407 (2000); MCL 712A.19b(5). We review the trial court’s determination for
clear error. Trejo, supra at 356-357. A finding is clearly erroneous if, although there is evidence
to support it, we are left with a definite and firm conviction that a mistake has been made. In re
JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003), citing In re Miller, 433 Mich 331, 337; 445
NW2d 161 (1989). Further, to be clearly erroneous the decision must be “more than just maybe
or probably wrong.” Trejo, supra at 356, quoting In re Sours Minors, 459 Mich 624, 633; 593
NW2d 520 (1999).
Although not addressed on appeal, respondent’s voluntary terminations to her older
children alone served as a basis for termination under MCL 712A.19b(3)(m). While noting that
only one statutory ground for termination is required, Sours, supra at 632, we also find no clear
error in the trial court’s conclusion that termination was also warranted under MCL
712A.19b(3)(g), (i), and (j).1
While it is clearly apparent that respondent addressed the past neglectful environmental
conditions that led to the removal of her older children by maintaining a clean home and
appropriately caring for the child, the fact that she remained unable to maintain suitable housing
1
We note that termination under subsection (l) is clearly not applicable in this case because
respondent voluntarily terminated her parental rights to her older children.
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for the child even with intensive services revealed a continued inability to provide proper care
for her child. The record revealed that she lost housing when the child was in her care and was
unable to obtain housing suitable for the child during the remainder of the proceedings. It was
especially concerning to the trial court and some witnesses that respondent never sought
assistance before the family’s eviction from their home from any of her multiple service
providers or her caseworker, who could have potentially prevented the loss of her housing and
the removal of the child from her care. There was also evidence supporting the trial court’s
ongoing concern about her ability to properly care for the child without continued services or
dependence on others. Notably, respondent had already received extensive services during the
proceedings involving her older children and again during these proceedings, but still had not
progressed enough in terms of parenting and housing for the child to return to her care.
Given the foregoing, the evidence supported the trial court’s conclusion that respondent
would not likely be able to provide proper care or custody for the child within a reasonable time,
especially considering the child’s tender age and her special needs, MCL 712A.19b(3)(g), and
the trial court’s conclusion that prior attempts to rehabilitate respondent have been unsuccessful.
MCL 712A.19b(3)(i).
Finally, the foregoing, coupled with her lengthy Protective Services history and the
serious neglect of her older children, In re AH, 245 Mich App 77, 84; 627 NW2d 33 (2001);
Jackson, supra at 26, established that the child would be at a risk of harm if returned to her
home, especially considering the child’s special needs. MCL 712A.19b(3)(j). Although this is
definitely a close case, on this record we are not left with a definite and firm conviction that the
court made a mistake in deciding that termination was warranted under subsections (g), (i) and
(j). JK, supra at 209-210.2 In so concluding, we note that the trial court was very familiar with
this case as well as respondent’s other cases involving her older children. Miller, supra at 337.
Respondent next claims that termination was premature because the evidence,
particularly the psychological evaluation, established that termination was clearly not in the
child’s best interests. Again, under this applicable standard of review, we must disagree.
After reviewing the record in its entirety, we again find that the evidence weighing
against termination was strong and presented a very close case. However, giving regard to the
special ability of the trial court to judge the credibility of the witnesses who appeared before it,
Miller, supra at 337, and considering the child’s tender age and special needs, the lack of a
significant bond between respondent and the child, and the uncertainty regarding respondent’s
ability to make further improvements with additional services given the length of time she had
already been provided with services, we cannot say that the trial court clearly erred in
2
Respondent contends briefly that the trial court erred in authorizing the petition seeking
termination at the initial disposition because petitioner failed to establish the necessary “risk of
harm” as required by MCL 722.638. We disagree. There is no question that, given respondent’s
history of seriously neglecting her older children and the department’s concern about her ability
to properly care for the child without services in her home, the evidence established that the child
was at a risk of harm. Moreover, petitioner later amended the petition to add allegations
regarding the loss of her housing, which clearly placed the child at an unreasonable risk of harm.
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terminating her parental rights, instead of delaying the child’s permanency. Trejo, supra at 354.
We recognize and commend respondent’s significant strides towards addressing her issues,
which demonstrated her strong desire to reunify with her child. However, her potential for
success with continued services remained uncertain in light of her inability to obtain or maintain
suitable housing for the child even with intensive services, her history of serious neglect of her
older children, and her continued failure to seek assistance when needed to the child’s detriment.
On this record, the trial court did not clearly err in concluding that termination was in the child’s
best interests. Trejo, supra at 354.3 The primary beneficiary of the court’s opportunity to find
that termination is clearly not in the child’s best interests afforded under the best interests
provision is intended to be the child, not the parent. Trejo, supra at 356.
While we are cognizant of respondent’s favorable psychological evaluation
recommending that she be afforded additional time and services, we cannot say, with a firm and
definite conviction, that the trial court erred in disagreeing with the recommendation. It is
evident from the court’s findings that it gave more weight to respondent’s continued inability to
eliminate her shortcomings after having already received intensive services for a significant
period of time during these and the prior proceedings, her lack of a plan for the child, and her
lack of a bond with the child. These facts were clearly supported by the evidence and supported
the court’s conclusion that there was no reasonable expectation that respondent could meet the
child’s needs within a reasonable period of time. Furthermore, the evaluating psychologist noted
that respondent “presented with an unwillingness to be candid about her psychological feelings
and problems,” “tended to place herself in an overly favorable light,” “was unwilling to admit
even minor flaws, and displayed an effort to be deceptive about her motives and level of
adjustment,” which arguably lessoned the weight of her recommendation.
Affirmed.
/s/ Christopher M. Murray
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
3
The trial court went beyond the best interests inquiry under MCL 712A.19b(5), as the statute
does not require that the court affirmatively find that termination is in the child’s best interests.
Trejo, supra at 364 n 19.
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