IN RE JOHNSON/PAINE MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
August 10, 2010
In the Matter of T. A. JOHNSON and S. R.
PAINE, Minors.
No. 294881
Wayne Circuit Court
Family Division
LC No. 95-328733-NA
Before: K.F. KELLY, P.J., and WILDER and GLEICHER, JJ.
PER CURIAM.
Respondent, the biological mother of the involved children, appeals as of right a circuit
court order terminating her parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (i), and (j).
We affirm.
This child protective proceeding arose when petitioner filed a permanent custody petition
in July 2006. The petition initially referenced a December 1996 Wayne Circuit Court order that
had terminated respondent’s parental rights to three older children. The petition then listed many
allegations that focused on concerns regarding respondent’s mental stability and ability to
maintain stable housing. For example, the petition averred that in June 2006 respondent had
departed from a homeless shelter after “accus[ing] the staff and other shelter participants of
poisoning the infant’s formula and putting something into the laundry which caused her to
become sick.” During respondent’s abbreviated stay at the shelter, she reportedly exhibited
“irrational” behavior “with several outbursts.” According to the petition, since leaving the
shelter respondent had “moved to at least 6 different locations” and had “admitted to staying
with strangers with the children.” The petition additionally asserted that in July 2006 respondent
“accused prior landlords of sabotaging the homes in attempts to harm her and the children. She
reported that the landlord would paint the walls in the home with formaldehyde.” Also in July
2006, respondent expressed to protective service workers that she had “a prior diagnos[is] of
depression . . . [for] which medication was prescribed. However, she could not remember the
medication or the time frame.”
In August 2006, the circuit court exercised jurisdiction over the two involved children on
the basis of respondent’s admissions to many of the petition’s allegations. Petitioner agreed to
drop its request for permanent custody and permit respondent to participate in a reunification
plan. The circuit court ordered that respondent participate in a treatment plan consisting of
parenting classes, individual therapy, psychiatric and psychological evaluations, substance abuse
treatment for alcohol and marijuana usage, supervised parenting times, and maintenance of a
legal income source, housing, and contact with petitioner. Over the more than 2-1/2 years
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between the court’s exercise of jurisdiction and petitioner’s filing of a supplemental permanent
custody petition in March 2009, respondent made sporadic, but ultimately insubstantial, progress
toward completing the elements of her treatment plan. In September 2009, after a two-day
termination hearing, the circuit court terminated respondent’s parental rights.
Respondent initially asserts on appeal that the circuit court violated her constitutional due
process rights by depriving her of notice of the preliminary hearing, which respondent
consequently did not attend. We review de novo the legal issues of constitutional law and court
rule interpretation inherent in respondent’s argument. In re Rood, 483 Mich 73, 91 (opinion by
Corrigan, J.); 763 NW2d 587 (2009); Johnson Family Ltd Partnership v White Pine Wireless,
LLC, 281 Mich App 364, 387; 761 NW2d 353 (2008). Respondent’s lack of notice claim
qualifies as unpreserved because she did not raise the claim of error at any point in the child
protective proceedings; we thus review this claim only to ascertain whether any plain error
affected respondent’s substantial rights. In re Williams, 286 Mich App 253, 274; 779 NW2d 286
(2009), citing People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
The Michigan Court Rules, in MCR 3.965(B)(1), aim to protect the procedural due
process rights of parents or other legal custodians with respect to preliminary hearings in child
protective proceedings. Pursuant to MCR 3.965(B)(1),
The court must determine if the parent, guardian, or legal custodian has
been notified, and if the lawyer-guardian ad litem for the child is present. The
preliminary hearing may be adjourned for the purpose of securing the appearance
of an attorney, parent, guardian, or legal custodian or may be conducted in the
absence of the parent, guardian, or legal custodian if notice has been given or if
the court finds that a reasonable attempt to give notice was made. [Emphasis
added.]
Here, the notice discussion proceeded as follows at the July 26, 2006 preliminary hearing:
Referee: . . . And has the mother of these children, . . . been notified of
these proceedings?
Children’s Protective Services (CPS) Worker: I was—her whereabouts
currently are unknown to me. Ms. Vickerson [a former foster mother of
respondent, with whom one of respondent’s children had been placed] did inform
me that she’d talked with her over the phone and informed her.
***
Referee:
mother?
Okay.
Now you mentioned—who was it that notified the
CPS Worker: Mrs. Vickerson, the person that the infant is staying with.
***
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Referee: So, the foster care provider knows—is in touch with the mother.
Does she know her whereabouts?
CPS Worker: She does not have an address. Just kind of using the various
telephone numbers that she had, she was able to talk with her.
Near the close of the preliminary hearing, the referee declared, “Well, you have notice to the
mother,” a finding echoed in the postpreliminary hearing order entered by the referee: “Notice
of the Hearing was given as required by law.”
The scant record in this regard constrains us to conclude that respondent did not receive
adequate or reasonable notice of the preliminary hearing in conformity with MCR 3.965(B)(1).
The brief exchange on the record, which came in the form of hearsay, did not offer any specific
details concerning when respondent may have heard information by telephone about the petition
in this case and the preliminary hearing, or what specific information the second-hand source
supplied respondent about the preliminary hearing on the petition. We deem the vague and
abbreviated record showing insufficient to satisfy MCR 3.965(B)(1) and respondent’s right to
procedural due process at the outset of these child protective proceedings. In re Rood, 483 Mich
at 107-111, 118 (opinion by Corrigan, J.), 123-124 (Cavanagh, J., concurring in part), 126-127
(Young, J., concurring in part). Nonetheless, we conclude that the initial lack of satisfactory
notice to respondent, although a plain error, did not qualify as prejudicial to her substantial
rights. Unlike the respondent in In re Rood, id. at 114-115, respondent in this case appeared at
16 of the 18 subsequent hearing dates, had representation by counsel at all the hearings, and
petitioner offered respondent assistance with many services. And importantly, respondent fails
to explain in her brief on appeal any manner in which the improper preliminary hearing notice
caused her any prejudice. In summary, the early lack of notice did not affect the outcome of the
child protective proceedings. Carines, 460 Mich at 763-764.
Respondent also complains that the circuit court neglected to comply with MCR
3.965(C)(4)(b), which sets forth that “[i]f the child has been placed in a relative’s home, . . . the
court must order the [Department of Human Services] to perform a home study with a copy to be
submitted to the court not more than 30 days after the placement.” Again, respondent raised no
timely objection to petitioner’s placement of one of respondent’s children with the child’s
paternal grandmother at the outset of the proceedings. Even assuming that a lack of compliance
with MCR 3.965(C)(4)(b) amounted to plain error, the error did not affect respondent’s
substantial rights. Respondent entirely omits an explanation of how the home study omission
affected the outcome of the proceedings, and we discern no effect or impact on the circuit court’s
ultimate termination of respondent’s parental rights. Carines, 460 Mich at 763.
Respondent additionally contests the propriety of the circuit court’s termination ruling.
The petitioner bears the burden of proving a statutory ground for termination by clear and
convincing evidence. MCL 712A.19b(3); In re Trejo, 462 Mich 341, 350; 612 NW2d 407
(2000). Once a statutory ground for termination is established by clear and convincing evidence,
the circuit court must order termination if “termination of parental rights is in the child’s best
interests.” MCL 712A.19b(5). We review for clear error a circuit court’s findings of fact. MCR
3.977(J); In re Trejo, 462 Mich at 356-357. “A finding is clearly erroneous if although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
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conviction that a mistake has been made.” In re Miller, 433 Mich 331, 337; 445 NW2d 161
(1989) (internal quotation omitted).
Clear and convincing evidence supported the circuit court’s decision to terminate
respondent’s rights under MCL 712A.19b(3)(c)(i), which authorizes termination when “182 or
more days have elapsed since the issuance of an initial dispositional order, and the court, by clear
and convincing evidence, finds” that “[t]he conditions that led to the adjudication continue to
exist and there is no reasonable likelihood that the conditions will be rectified within a
reasonable time considering the child’s age.” The conditions leading to adjudication in this case
included respondent’s prior terminations, her lack of housing, and her unstable mental condition.
A psychiatric evaluation diagnosed respondent as having bipolar disorder, and she was
prescribed Depakote to help with her mood swings. Psychologist Dr. Oluwa Davis, respondent’s
most recent therapist, testified at the termination hearing that he had begun counseling
respondent around June 2008 to address “the loss of her children and the difficulty that she was
experiencing in finding a stable living circumstance,” “[a]nd [that] constant conflicts in
relationships was her primary issue.” Although the court ordered respondent to attend weekly
therapy, she met with Dr. Davis on average once a month. Dr. Davis’s records reflected that (1)
in February 2009, respondent reported “improved mental status . . . [and] increased compliance
with meds,” (2) Dr. Davis did not meet with respondent in March 2009 or April 2009, (3) in May
2009, Dr. Davis characterized respondent “as being a danger to others for ideations and making
no progress,” (4) in June 2009, respondent appeared angry and “report[ed] that she is very
unstable and capable of striking out angrily due to constant pressures of others [on] whom she is
forced to rely,” and (5) in July 2009, respondent exhibited “[s]imilar kind of behavior.” Dr.
Davis expressed that he had no concerns about respondent’s ability to care for her children,
explaining that the loss of the children had caused respondent the most frustration, and that “with
treatment,” a parent suffering from bipolar disorder can parent their children. However, Dr.
Davis cautioned that respondent “needs ongoing counseling and therapy.”
Other testimony at the termination hearing summarized that respondent inconsistently
attended supervised parenting times with her children throughout most of the lengthy child
protective proceedings, although she did visit more regularly in May 2009 and June 2009, and
that when respondent attended visits she frequently lashed out at the children’s foster parents and
other adults. The accounts of one child’s foster mother and a parenting time supervisor reflected
that respondent repeatedly hurled angry accusations at other adults she encountered, sometimes
in front of her child; insinuated that she would harm her case worker if she lost her children; and,
in general, just seemed “so angry all the time.” With respect to respondent’s other treatment plan
components, her current case worker described that (1) she completed parenting classes,
although the worker opined that on the basis of his observations of a couple of visits and his
conversations with respondent’s visitation supervisor, he disbelieved that respondent had
benefited from the parenting classes; (2) respondent participated in psychological and psychiatric
evaluations, which recommended counseling and medication for her bipolar disorder; (3) several
counseling agencies had terminated respondent’s counseling sessions due to nonparticipation,
before she began seeing Dr. Davis; (4) respondent had neglected to complete a substance abuse
program, and infrequently participated in drug screens; (5) respondent, who had a “constant
history of transience,” remained homeless at the time of the termination hearing; and (6)
respondent had no confirmed current source of income, although she did hold multiple, shortterm fast food jobs in recent years.
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In summary, clear and convincing evidence established that the conditions leading to the
children’s adjudication continued to exist at the time of the termination hearing, despite
respondent’s receipt of various services. And in light of respondent’s minimal sustained
progress over the course of the almost three years that she had to participate in services while her
children remained in foster care, clear and convincing evidence also established no reasonable
likelihood that respondent could rectify the conditions in a reasonable time given the children’s
ages. Furthermore, the evidence detailed above clearly and convincingly proves the ground for
termination in MCL 712A.19b(3)(g), that “[t]he parent, without regard to intent, fails to provide
proper care or custody for the child and there is no reasonable expectation that the parent will be
able to provide proper care and custody within a reasonable time considering the child’s age.”
We conclude that the circuit court did not clearly err when it invoked these statutory grounds in
support of its termination ruling.1
Respondent lastly suggests that the circuit court neglected to make a best interests
determination in conformity with MCL 712A.19b(5). However, the record reveals that the
circuit court made findings and conclusions concerning the children’s best interests in its bench
ruling before making conclusions about the statutory grounds warranting termination:
But there’s [sic] been a whole host of things that have prevented these
children from moving forward and the primary concern of this Court is the best
interests of these children.
And the best interests of these children has [sic] not been served by
keeping them as wards for the three years.
The children do need stability. We’re fortunate these children don’t have
any special needs, but in order for them to continue to prosper, they need some
stability.
And the children have been placed in the care of the relatives so that’s a
fortunate scenario for them as well.
Based upon the length of time the children have been in care, the fact that
the mother has not made significant progress on her treatment plan, the fact that
the conditions that existed at the beginning of this case, continue to exist and there
1
Because only one ground for termination need exist, we decline to consider the alternate
grounds cited by the circuit court. To the extent that respondent characterizes as inadequate
petitioner’s provision of services, the record simply does not substantiate her claim. Even
assuming that petitioner failed to follow through with two housing referrals, it appears highly
unlikely that “respondent would have fared better if the worker had offered those additional
services,” in light of the extended period of time that the court afforded respondent to participate
in multiple housing and other services and the absence of any proof that respondent would have
secured a stable residence with greater assistance from petitioner. In re Fried, 266 Mich App
535, 543; 702 NW2d 192 (2005).
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is no reasonable likelihood that they’re going to change anytime soon, the Court is
compelled to terminate her parental rights.
The fact of the matter remains is [sic] that I don’t see anything happening
in the near future.
I don’t see any changes. I just don’t and we’ve given three years. . . . I
don’t think really in good conscious [sic], I don’t see how I could give her more
time.
Abundant evidence of record supports the circuit court’s best interests findings, and
consequently, we detect no clear error in these findings. The evidence did show that respondent
and her oldest child shared a loving bond, but the entirety of the record concerning respondent’s
minimal progress over the course of three years amply support the circuit court’s best interest
ruling.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Kurtis T. Wilder
/s/ Elizabeth L. Gleicher
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