IN RE TOLEN-SCHIEFEL MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KYLER SCHIEFEL, ISABELLA
TOLEN-SCHIEFEL, and D-SHAWN LEI
TOLEN-SCHIEFEL, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
March 12, 2009
Petitioner-Appellee,
v
No. 286587
Marquette Circuit Court
Family Division
LC No. 05-008289-NA
MARION SCHIEFEL,
Respondent-Appellant.
In the Matter of ISABELLA TOLEN-SCHIEFEL
and D-SHAWN LEI TOLEN-SCHIEFEL, Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 286609
Marquette Circuit Court
Family Division
LC No. 05-008289-NA
JASON TOLEN,
Respondent-Appellant.
Before: Sawyer, P.J., and Zahra and Shapiro, JJ.
PER CURIAM.
In these consolidated appeals, respondents appeal as of right from the separate orders
terminating their parental rights to their minor children pursuant to MCL 712A.19b(3)(c)(i) and
(g). Because clear and convincing evidence established statutory grounds for termination, and
termination of respondents’ parental rights was not clearly contrary to the best interests of the
children, we affirm.
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The primary condition of the initial adjudication, which related to Isabella and Kyler,
who is not a child of respondent father, was the existence of domestic violence between
respondents, occurring in the presence of the children. The same condition was a basis for
jurisdiction over D-Shawn, born during these proceedings. Petitioner initially sought termination
of the parental rights of both respondents in June 2007, which was denied following a trial in
September 2007. Respondent mother was provided with a new service plan following the denial
of termination, but respondent father, who was then incarcerated, was not. Petitioner again
sought termination in March 2008, which was granted with regard to both respondents. Our
review of the record reveals that the trial court did not clearly err by finding that statutory
grounds for termination pursuant to MCL 712A.19b(3)(c)(i) and (g) were established by clear
and convincing evidence. In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989); MCR
3.977(J).
I. Statutory Grounds as to Respondent Mother
After adjudication, respondent mother was directed to participate in an anger
management assessment, to follow all recommendations, and to engage in individual counseling.
However, the record reveals that she demonstrated little willingness to examine her own
behaviors, as reflected in her resistance to counseling, her delay in seeking anger management
therapy, and her refusal to participate in substance abuse treatment. There is no evidence that
respondent mother actually undertook a course of treatment that would lead to reunification.
Indeed, the evidence suggests respondent mother failed to participate or benefit from any of the
extensive services provided.
Although substance abuse treatment was strongly indicated by her anger management
assessment, respondent mother failed to participate. She failed to achieve the goals set with her
family health education worker because of the lack of consistent visits. Her Infant Mental Health
worker reported that, while there was initial progress, after approximately December 2007,
progress ceased because she was not able to see respondent mother based on respondent
mother’s failure to contact her. Respondent mother’s Wraparound1 worker testified that she had
only one meeting with respondent mother due to difficulty contacting her, and that during the
singular meeting, very little was accomplished. Both her family mental health education worker
and Infant Mental Health worker described having great difficulty contacting respondent mother.
Her failure to engage in her treatment plan during the pendency of this case is evidence of her
failure to provide proper care and custody for her children. In re JK, 468 Mich 202, 214; 661
NW2d 216 (2003). Additionally, throughout the lengthy proceedings, respondent mother failed
to maintain stable housing or employment. We conclude that all of this evidence supports the
trial court’s conclusion that, if the children were returned to respondent mother, there was no
reasonable likelihood that the conditions which gave rise to the court’s jurisdiction would be
rectified within a reasonable time considering the children’s ages. MCL 712A.19b(3)(c)(i) and
(g). This was particularly so, given the trial court’s recognition of “[h]er failure to take
1
Wraparound is a service provided through DHS which is “a planning process that is designed to
create an individualized plan to meet the needs of children and their families by utilizing their
strengths.” http://www.michigan.gov/mdch/0,1607,7-132-2941_4868_7145-14676--,00.html.
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advantage of a second opportunity [after the initial petition for termination was denied], during
which service providers made significantly more strenuous efforts to help her . . . .”
Respondent mother contends on appeal that petitioner did not provide reasonable services
directed toward reunification, specifically arguing that she should have been psychologically
evaluated, which would have led to a diagnosis of bipolar disorder for which she could be
treated. Respondent mother’s contention that reasonable efforts toward reunification of the
family were not offered ultimately relates to the issue of the sufficiency of the evidence to
establish a statutory ground for the termination of her parental rights. In re Fried, 266 Mich App
535, 541; 702 NW2d 192 (2005). We initially note that the conclusion that respondent mother
suffers from bipolar disorder is nowhere found in the record. The record does reveal that
respondent mother had previously been prescribed Prozac, for a diagnosis of depression, but
indicated that she could no longer afford it. A foster care worker testified that she repeatedly
urged respondent to secure Medicaid or MCAC2 in order to obtain her medication, but
respondent mother did not do so. An updated service plan of February 11, 2008, indicates that
respondent mother was instructed numerous times that the Medicaid program was in open
enrollment status. If respondent mother had followed through with the necessary steps to secure
treatment for her psychiatric condition, it seems reasonable to believe that she would have been
treated for her existing condition, whatever it might be. However, she did not seek such
treatment, despite being urged to do so.
Under these circumstances, where respondent mother was offered extensive services,
including anger management and substance abuse assessment, substance abuse treatment,
individual counseling, drug testing, Wraparound services, Infant Mental Health services, and
family education services, but completed only the anger management and substance abuse
assessment, and made no attempt to secure treatment for the psychiatric condition for which she
had already been diagnosed, the failure of the petitioner to secure a psychological evaluation is
not enough to render insufficient the evidence for the termination of parental rights.
Therefore, we find that the trial court did not clearly err in finding that MCL
712A.19b(3)(c)(i) and (g) were established with regard to respondent mother.
II. Statutory Grounds as to Respondent Father
Following the adjudication hearing in November 2006, respondent father was directed to
participate in counseling to address the issue of domestic violence. Respondent father was
provided with names of agencies to contact for anger management/counseling services, but he
did not follow through. The foster care worker then set him up with counseling. Respondent
father began counseling in April 2007 and attended four sessions before his incarceration in May
2007 for a federal charge of “knowingly receiving, possessing, concealing, storing, and disposing
of six stolen firearms.” His counseling assessment indicates that he presented with anger and
control issues, to which he would admit, but at the same time would deny as being a problem.
2
The foster care worker testified that Medical Care Access Coalition is a local organization that
provides free medical services.
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The assessment further noted that he exhibited many traits of anti-social personality disorder and
had chronic problems with responsibility and being able to see his own role in his current
difficulties.
While respondent father was incarcerated on the federal charge, he was subsequently
charged with second-degree murder. At the time of the second termination trial, respondent
father was awaiting trial on the murder charge. Respondent father’s own testimony indicated
that the murder charge stemmed from an altercation that occurred during his incarceration for the
federal offense. This behavior substantiates petitioner’s position that respondent father continues
to be unable to appropriately deal with his anger and control issues. His minimal participation in
counseling to address the serious issues of domestic violence existing at the adjudication of this
case was inadequate. Sufficient benefit from the services provided is required, In re Gazella,
264 Mich App 668; 692 NW2d 708 (2005), and the evidence showed that respondent father had
not obtained any substantial level of benefit at the time of the termination hearing.
Additionally, at the time of the termination hearing, even if respondent father were to be
acquitted of the second-degree murder charge, his earliest possible release would have been in
January or February 2009 based on his criminal attorney’s representation that trial could be in
January 2009.3 Thus, respondent father could not even begin to address the anger, control, and
domestic violence issues for at least six months. And, even if he were acquitted and released in
January 2009, several months of treatment would still be necessary to address the serious issues
of domestic violence, so that the children would be required to wait, at minimum, an additional
nine months for any resolution. Given that Isabella had already been in foster care for almost
two years, D-Shawn had been in foster care his entire life, and the children would have to wait at
least nine more months for a highly uncertain prospect of rehabilitation and reunification, it was
not clearly erroneous for the trial court to determine that there was no reasonable likelihood the
conditions could be rectified within a reasonable time considering the ages of the children. Thus,
termination was proper under MCL 712A.19b(3)(c)(i).
Termination was also proper under MCL 712A.19b(3)(g). Respondent father failed to
provide proper care and custody for Isabella by engaging in domestic violence in her presence
and he further failed to provide proper care and custody for his children by engaging in criminal
activity that caused respondent to be incarcerated when D-Shawn was less than three months old
and Isabella was barely over one year old. Respondent father had no contact with the children
once he was incarcerated, and there was no evidence that he had attempted to either contact them
or provide for them, physically, emotionally, or monetarily. As previously noted, under the most
favorable scenario possible, it would have been a minimum of nine more months before
respondent father could conceivably address the substantial barriers to reunification, including
domestic violence and substance abuse. Respondent father admitted at trial that he could not
“provide anything for my children” because of his incarceration. Respondent father’s failure to
3
Subsequent to the termination proceedings, respondent father was tried in January 2009 on the
murder charge. The federal jury convicted him of voluntary manslaughter, which carries a
sentence of up to 15 years. However, we have based our decision on the facts that existed at the
time of the hearing.
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comply with his treatment plan prior to his incarceration supplies further evidence of his inability
to provide proper care and custody for the children. In re JK, supra. Accordingly, we conclude
that the trial court did not clearly err by finding that there was no reasonable likelihood that
respondent father would be able to provide proper care and custody for the children within a
reasonable time considering their ages. MCL 712A.19b(3)(g).
On appeal, respondent father argues that the agency failed in its duty to provide
reasonable services toward reunification, particularly by failing to provide him a service plan
during his incarceration. We disagree. We note that respondent father does not argue that there
were, in fact, services available, which he was denied. Instead, he argues that the caseworker did
not make an exhaustive search to determine whether any other services were available to him.
This is not required by the statute.
Generally, petitioner must make reasonable efforts directed toward reunification of
families and to avoid termination of parental rights. In re LE, 278 Mich App 1, 18; 747 NW2d
883 (2008). However, petitioner need only offer reasonable services; it has no duty to provide
every conceivable service. MCL 712A.18f(4). Additionally, services are not required in every
case. Where it is unreasonable to offer services, petitioner may decline to do so, but must justify
that decision. MCL 712A.18f(1)(b).
Here, the caseworker testified that she looked into services that would be available for
respondent while incarcerated, but was advised that, based on his status as a federal inmate,
services were not available for him in the Marquette County Jail. Additionally, respondent father
was moved to a federal prison in Illinois seven months prior to the termination hearing, such that
he was quite clearly out of the jurisdiction of the agency. We do not find the trial court’s
acceptance of these justifications clearly erroneous.
In any event, complaints that reasonable efforts toward reunification of the family were
not offered are evaluated as issues regarding the sufficiency of the evidence to establish a
statutory ground for the termination of his parental rights. See In re Fried, supra. Even when
respondent father was provided with services prior to his incarceration, his participation was
minimal and sporadic. There was no evidence to suggest that respondent father’s attitude or
participation would have been any different had services been available during incarceration.
Under these circumstances, petitioner’s failure to provide services to respondent father for the six
months he was incarcerated at the Marquette County Jail is not enough to undercut the
sufficiency of the evidence for the termination of parental rights.
III. Best Interests
Finally, the trial court did not clearly err by finding that termination of the parental rights
of both respondents was not clearly contrary to the best interests of the children. MCL
712A.19b(5); MCR 3.977(J). The infant D-Shawn has never been in the care of respondents,
and Isabella, now approximately three and one half years old, has been in foster care since she
was approximately six months old. According to an agency report subsequent to the termination
of respondents’ parental rights, Isabella and D-Shawn are in placements that wish to adopt them.
Kyler is placed with his father. Given respondent mother’s failure to complete any aspect of her
treatment plan beyond anger management and substance abuse assessments, it is clear that she is
not in a position to offer the children stability. Respondent father remains incarcerated and upon
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his release would have to successfully address substantial barriers to reunification, a task he
failed to seriously undertake prior to his incarceration. This record supplies no evidence that the
trial court’s best interests determination was clearly erroneous.
Affirmed.
/s/ David H. Sawyer
/s/ Brian K. Zahra
/s/ Douglas B. Shaprio
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