IN RE OLIVIA JOE BEAN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of OLIVIA JOE BEAN, a/k/a
OLIVIA JOE HERRIN, and EVANN EDWARD
WALKER, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
December 30, 2008
Petitioner-Appellee,
v
No. 285467
Oakland Circuit Court
Family Division
LC No. 07-731815-NA
ELIZABETH PEARL HERRIN,
Respondent-Appellant,
and
JOSEPH EMERY BEAN,
Respondent.
In the Matter of OLIVIA JOE BEAN, a/k/a
OLIVIA JOE HERRIN, Minor.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 285468
Oakland Circuit Court
Family Division
LC No. 07-731815-NA
JOSEPH EMERY BEAN,
Respondent-Appellant,
and
ELIZABETH PEARL HERRIN,
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Respondent.
Before: Gleicher, P.J., and Kelly and Murray, JJ.
PER CURIAM.
In Docket No. 285467, respondent mother appeals as of right the trial court’s order
terminating her parental rights to the two minor children, Evann Walker and Olivia Bean, a/k/a
Olivia Herrin, under MCL 712A.19b(3)(c)(i), (g), and (j). In Docket No. 285468, respondent
father appeals as of right the order terminating his parental rights to his daughter, Olivia, under
the same statutory sections. This Court has consolidated the appeals. We affirm the order
terminating respondent mother’s parental rights. We reverse the order terminating respondent
father’s parental rights and remand for further proceedings.
On March 10, 2007, respondent mother gave birth to Evann at Royal Oak Beaumont
Hospital. At the time of Evann’s birth, respondent mother tested positive for cocaine and
hepatitis C. She later admitted she had used marijuana the day she was admitted to the hospital.
Evann’s meconium tested positive for marijuana and cocaine. Olivia, then two years old, was
being cared for by her paternal grandmother and respondent father around this time. Respondent
father’s father had prior domestic violence convictions. Respondent mother, who had a history
of unstable housing, had previous protective service referrals in Macomb County alleging
neglect. A petition for temporary custody was subsequently filed in Oakland Circuit Court, and
respondent mother, respondent father, and Evann Edward Walker1 pleaded responsible to the
allegations in the petition.2 The children were placed in the custody of the Department of
Human Services (DHS) for care and planning.
The parties subsequently entered into a parent-agency agreement, which required
respondent mother to (1) clear up her bench warrants, (2) participate in urine screens three times
per week, (3) attend a substance abuse assessment, (4) attend parenting classes, (5) participate in
individual therapy, (6) obtain and maintain suitable housing and employment, and (7) attend
visits with the children after submitting three negative drug screens. Respondent father was
required to (1) submit random drug screens three times per week, (2) obtain housing and
employment, (3) attend parenting classes, (4) attend visits with Olivia, and (5) attend a substance
abuse assessment.
At the time the wardship trial commenced on March 4, 2008, respondent mother had been
incarcerated in Macomb County for approximately 90 days, and with the exception of a brief
stint at a substance abuse treatment facility, had failed to satisfy the conditions of the parentagency agreement. Respondent father, on the other hand was more successful, completing a
1
Evann Edward Walker is Evann’s father and has a significant criminal history. Although the
trial court terminated Evann Edward Walker’s parental rights in the proceedings below, he is not
a party to this appeal.
2
The parties previously waived probable cause at the March 26, 2007, preliminary hearing.
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number of drug screens, including three in a row as required to see Olivia while missing only
several due to transportation issues or work. All drug tests results were negative, and respondent
father notified the foster care worker, Tiffany Barber, when there were work conflicts. Although
he did not call DHS to request a visit with Olivia, respondent father did inquire about seeing
Olivia at the January 9, 2008, court hearing. Additionally, while failing to provide pay stubs or
verification, respondent father obtained employment for a month around December 2007, and
testified that he had completed parenting classes and would begin a new job the week after trial.
Respondent father also completed a substance abuse assessment, which concluded that substance
abuse treatment was unnecessary, and took random drug tests, the results of which were
negative. Notably, Barber recommended that respondent father be granted three months to
complete services and begin seeing Olivia despite his sporadic contact with her. Following trial,
the court found petitioner had established MCL 712A.19b(3)(c)(i), (g), and (j), with regard to all
parents and continued the matter for a best interests hearing.
The best interests hearing commenced April 14, 2008. Psychological evaluations
presented at the best interests hearing concluded that it would take substantial time for
respondent mother to progress sufficiently to display the responsibility necessary to care for a
child and that respondent father lacked sufficient motivation and maturity to place Olivia’s needs
and wants above his own. Barber concurred with the recommendation, testifying that
termination was in the children’s best interests. Despite respondents’ opposition, the trial court
agreed and terminated respondents’ parental rights because termination was not contrary to the
best interests of the children
On appeal, the parties first argue that the trial court erred in finding jurisdiction in this
matter where Evann was born in Oakland County, but respondent mother did not have stable
housing in Oakland County, and Olivia resided in Macomb County with respondent father.
Because respondents challenge the trial court’s statutory authority for jurisdiction, rather than the
court’s exercise of jurisdiction, this Court may review the issue although it was not raised below.
In re Hatcher, 443 Mich 426, 436; 505 NW2d 834 (1993).
MCL 712A.2(b) confers jurisdiction over children “found within the county” whose
parents have neglected them. Pursuant to MCR 3.926(A), a child is “found within the county,”
under the meaning of MCL 712A.2, “in which the offense against the child occurred, in which
the offense committed by the juvenile occurred, or in which the minor is physically present.” At
the time proceedings began, Evann was physically present in Oakland County. Furthermore,
Oakland County had proper jurisdiction over both children because respondent mother’s offense
against the children occurred in Oakland County. Evann was born in Oakland County, and he
tested positive for marijuana, cocaine, and hepatitis C at birth. Respondent mother admitted that
she had a history of unstable housing but claimed that she had the supplies she needed for Evann
at her boyfriend’s parents’ home in Oakland County, and the initial complaint alleged that she
was a resident of Oakland County. Therefore, the children were “found within” Oakland County
pursuant to MCL 712A.2(b), and the trial court did not err in assuming jurisdiction in this matter.
Next, respondents challenge the trial court’s orders terminating their parental rights. We
review for clear error the trial court’s determination that statutory grounds for termination were
established by clear and convincing evidence. MCR 3.977(J); In re Trejo, 462 Mich 341, 356357; 612 NW2d 407 (2000). Once the trial court determines that a statutory ground for
termination has been established, termination of parental rights is mandatory unless the court
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also finds that termination is clearly not in the child’s best interest. MCL 712A.19b(5)3; Trejo,
supra at 344. We review the trial court’s best interests determination for clear error. Id. at 356357.
With regard to respondent mother, the trial court did not clearly err in finding that the
statutory grounds for termination were established by clear and convincing evidence. The
conditions leading to adjudication were respondent mother’s drug use during her pregnancy with
Evann and her history of unstable housing. At the time of the termination trial, respondent
mother was incarcerated and had not completed any substance abuse treatment. It would have
taken respondent mother a substantial amount of time, upon her release from jail, to complete
substance abuse treatment and find employment and housing. Thus, the trial court did not err in
finding that the conditions of adjudication continued to exist, that respondent mother had failed
to provide proper care and custody to the children, and there was no reasonable likelihood she
would be able to do so within a reasonable time given the children’s very young ages. The trial
court also did not clearly err in finding a reasonable likelihood that the children would be harmed
if returned to respondent mother. Even setting aside the fact that respondent mother was in jail
and the children could not be returned to her home, respondent mother’s conduct placed Evann
in danger by using marijuana and cocaine during her pregnancy. Because she had not completed
substance abuse treatment or submitted clean drug screens, there was a strong likelihood that she
would use marijuana and cocaine again and place her children in harm’s way.
In making its best interests determination, the trial court found that respondent mother
was not ready to put the children’s interests above her own. Respondent mother’s actions in this
case reflected her inability to put her children’s interests above her own where she continued to
use drugs and not comply with drug screens, and continued criminal behavior, which prevented
her from meeting any of the goals of the parent-agency agreement. Respondent mother had very
little bond with Evann, whom she only saw a few times after his birth, and whatever bond she
had with Olivia had to be greatly lessened because she saw her only a few times in the year
preceding the best interests hearing. Therefore, we find that the trial court did not clearly err in
its best interests determination with regard to respondent mother and in terminating her parental
rights to the children.
However, we find that the trial court clearly erred in determining that the statutory
grounds for termination of respondent father’s parental rights were established by clear and
convincing evidence. Regarding the clear and convincing evidence standard, this Court has
explained:
3
The termination order in this case was entered before the 2008 amendment to MCL
712A.19b(5) went into effect July 11, 2008. The statute now provides:
If the court finds that there are grounds for termination of parental rights
and that termination of parental rights is in the child’s best interests, the court
shall order termination of parental rights and order that additional efforts for
reunification of the child with the parent not be made.
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Clear and convincing evidence is defined as evidence that produce[s] in the mind
of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established, evidence so clear, direct and weighty and convincing as
to enable [the factfinder] to come to a clear conviction, without hesitancy, of the
truth of the precise facts in issue. . . . Evidence may be uncontroverted, and yet
not be clear and convincing. . . . Conversely, evidence may be clear and
convincing despite the fact that it has been contradicted. [Kefgen v Davidson, 241
Mich App 611, 625; 617 NW2d 351 (2000) (quotations and citations omitted).]
First, the court clearly erred in finding that the conditions leading to the adjudication
continued to exist. MCL 712A.19b(3)(c)(i). At the time of adjudication, respondent father was
caring for Olivia at his parents’ home, which was deemed unsuitable only because his father had
domestic violence convictions. Respondent father was unable to move at that time. Notably,
housing and income were the only conditions of adjudication relating to respondent father.
By the time of trial, however, respondent father had a home and was to begin a job
paying $18 per hour the following week. Regarding housing, there was no indication in the
record that this home was “unsuitable” or that respondent father’s father was living there. See
Trejo, supra at 359-360 (upholding the trial court’s finding that the conditions of adjudication
continued to exist where the respondent’s housing situation was “unsuitable”). Also, while a
home study had yet to be completed at the time of trial, this was due to respondent father’s
inflexible work schedule. Given that respondent father was to begin a new job, this condition
could be satisfied within a reasonable period of time.
Besides housing, the trial court expressed doubt that respondent father would maintain
employment. However, the trial court based this assumption on the fact that respondent father’s
previous job lasted only a month. Despite the previous job’s brevity, the record does not indicate
the reason for the job’s duration or even whether respondent father’s new job is in any way
related. Further, the circumstances of the previous job’s termination were not disclosed at trial.
Thus, the court’s doubt that respondent father could maintain employment appears to be mere
conjecture. Such unfair conjecture, however, is insufficient to overcome the hurdle of clear and
convincing evidence and “this Court will not sanction termination of [respondent father’s]
parental rights on this basis.” In re Sours, 459 Mich 624, 636; 593 NW2d 520 (1999).
Furthermore, we note that as respondent father would begin his new job the week after trial, the
condition of unemployment was assuredly to be rectified within a reasonable period of time. In
light of this, it can hardly be said that the evidence was “so clear, direct and weighty and
convincing” that the conditions leading to adjudication continued to exist. Kefgen, supra at 625.
Second, the evidence did not establish that respondent father would not be able to provide
proper care and custody for Olivia within a reasonable time. MCL 712A.19b(3)(g). At the time
of adjudication, Olivia was living with respondent father and there were no allegations of
neglect. Respondent father testified at the termination trial that he had completed a 12-week
parenting class. Although the trial court cited respondent father’s failure to provide proof that he
had completed the class, respondent father testified that the parenting class program indicated it
would fax the necessary verification to Barber. Respondent father also indicated that he had
mailed this verification to Barber the week before trial. In any event, there was no indication
that respondent father actually needed a parenting class.
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Similarly, the court’s requirement that respondent father complete thrice-weekly drug
screens before visiting Olivia was questionable. Indeed, while respondent father admitted
marijuana use in the past, he completed a number of negative drug screens during the pendency
of this matter, including three drug screens in a row as required to see Olivia on two separate
occasions, and even completed a substance abuse assessment, which concluded that substance
abuse treatment was unnecessary. Respondent father also maintained contact with the foster
care worker, who recommended he be given additional time to complete his parent-agency
agreement. Also noteworthy was respondent father’s assertion that he had obtained clothing and
a bed for Olivia in his home. In light of this, the trial court clearly erred in finding that
respondent father had failed to provide proper care and custody for Olivia, and that there was not
a reasonable likelihood that he would be able to provide proper care and custody within a
reasonable time.
Third, the trial court clearly erred in finding that there was a reasonable likelihood of
harm if Olivia were returned to respondent father’s home. MCL 712A.19b(3)(j). As previously
noted, respondent father completed a substance abuse assessment, which concluded substance
abuse treatment was unnecessary. He had a home and employment, and he testified that he
attended a parenting class. Also, there was no indication that respondent father’s father was
living with, much less involved with Olivia. While the trial court indicated that Olivia was likely
to be harmed if placed in respondent father’s custody “based on the fact that he has not been able
to be consistent and follow through,” there was little evidence that these conditions would cause
harm where respondent father substantially completed the requirements of the parent-agency
agreement. Where a respondent makes progress in addressing parenting problems, termination
of parental rights may be improper. In re Boursaw, 239 Mich App 161, 168-178; 607 NW2d 408
(1999), overruled on other grds Trejo, supra at 353-354. Indeed, as this Court observed in ruling
the trial court failed to support its finding under MCL 712A.19b(3)(j) with clear and convincing
evidence:
While respondent may not yet be a model parent, we believe the record shows
that, at the time of the termination hearing, she had made significant strides
toward remedying the problems that had brought this matter to petitioner’s
attention. Furthermore, we cannot stress too strongly that “[t]he fundamental
liberty interest of natural parents in the care, custody, and management of their
child does not evaporate simply because they have not been model parents . . . .”
[Boursaw, supra at 176, quoting Santosky v Kramer, 455 US 745, 753; 102 S Ct
1388; 71 L Ed 2d 599 (1982).]
Therefore, the evidence does not leave “a firm belief or conviction” of any likelihood of harm
should Olivia be placed in respondent father’s custody. Kefgen, supra at 625. In light of these
findings, we conclude that the trial court clearly erred in terminating respondent father’s parental
rights.
In Docket No. 285467, we affirm the trial court’s order terminating respondent mother’s
parental rights to the children. In Docket No. 285468, we reverse the trial court’s order
terminating respondent father’s parental rights to his daughter and remand for further
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proceedings. We do not retain jurisdiction.
/s/ Elizebeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Christopher M. Murray
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