In Re skursky/miller Minors ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re SKURSKY/MILLER, Minors. February 10, 2022
No. 358065
Hillsdale Circuit Court
Family Division
LC No. 19-000595-NA
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
PER CURIAM.
Respondent appeals as of right the trial court order terminating her parental rights to her
minor children. Because there are no errors warranting reversal, we affirm.
I. BASIC FACTS
Respondent’s children were removed from her care in August 2019 because of unsanitary
and unsafe home conditions. Fourteen people lived in the five-bedroom home at the time,
including respondent, respondent’s husband and his brother, and several children in addition to
respondent’s children. The record reflects that, despite the provision of services aimed at
remedying the filthy state of respondent’s home, the condition remained deplorable. Inside the
home was animal feces, the odor of urine, trash, food, dirty clothes, toys, broken items, and
cockroaches. Additionally, the home had an ongoing mouse problem, with mouse droppings on
the kitchen shelf and mice eating food out of a bread bag on the stove and chewing the nipples off
of baby bottles inside a crib. A caseworker noted that although mice had been observed only a
few times, the extensive clutter meant that they were not easily observable. At one point, the home
was without electricity for approximately a month because they did not pay the bill even though
all four adults in the home were employed. In addition, the children were always dirty and had
extensive head lice. After removal, two of the children had tubes placed in their ears to assist with
hearing issues that they were having. Another child was suffering from a urinary tract infection
that her doctor believed she had had for probably a month or longer.
Also, after removal, respondent’s seven-year-old daughter demonstrated “sexual
behaviors,” including taking off her siblings clothing, attempting to shove things in her vagina
while she was in the bathtub, and looking at her buttocks while bent over in front of a mirror. At
times, she would attempt to place her fingers in her vagina or her anus. She also smeared feces
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twice while in school, would smear toothpaste on the mirrors, and would break glass cups on
purpose. Eventually, she disclosed that, on a number of occasions, her father and her uncle would
get into bed with her while they and she were naked. She stated that she touched their penises and
that they put their penises on her private parts. Eventually, all six children evaluated by the
Children’s Trauma Advocacy Center (CTAC) made sexual reports “in some way, shape, or form
about what we call hypersexuality.” Only the seven-year-old, however, disclosed actual sexual
abuse.
Throughout the proceedings, respondent expressed that she did not believe the sexual
assault allegations, and, even at the termination hearing, she testified that the allegations were
“either getting put into their heads or someone else is just saying it.” She believed that the foster
agency had made the allegations after they were unable to show domestic violence. She added
that she did not believe the allegations because she had not heard them directly from the children.
Her therapist testified that respondent “has the tendency to deny and minimize problems.”
Respondent’s caseworker testified that she was concerned that respondent did not believe the
children and supported their father for over a year. The caseworker explained that, although
respondent had separated from her husband, she did believe that respondent would keep the
children from their father if they were returned to her.
Following the termination hearing, respondent’s parental rights were terminated under
MCL 712A.19b(3)(c), (g), and (j).
II. DUE PROCESS
Respondent argues that the referee violated her due-process rights when she did not hear
formal testimony at the numerous review hearings. Respondent, however, has waived this
argument. See In re Ferranti, 504 Mich 1, 33; 934 NW2d 610 (2019) (explaining that waiver is
an intentional relinquishment of a known right); see also Mettetal v Hall, 288 Mich 200, 208; 284
NW 698 (1939) (“Where a witness gives his testimony without being sworn, the adverse party by
not objecting thereto waives any objection to it.”). At each hearing, the case report was entered
into evidence without objection. The lawyers and caseworkers then highlighted pieces of the
relevant report on the record. Respondent’s lawyer noted aspects of the report that respondent
wanted to highlight or that respondent found wanting or inaccurate. Respondent never questioned
this method and actively participated in it. Moreover, even when case workers made oral
statements relating to the case, there was no objection to their unsworn testimony. Therefore, this
issue is waived.
III. NOTICE REQUIREMENTS
Respondent next argues that the trial court did not comply with the notice requirements of
the Indian Child Welfare Act, 25 USC 1901 et seq., and the Michigan Indian Family Preservation
Act, MCL 712B.1 et seq The statutes require that the Department of Health and Human Services
(DHHS) notify the children’s parent of the proceeding, see 25 USC 1912(a) and MCL 712B.9(1).
Here, the children’s father was given notice of the proceedings; indeed, he was in attendance at
every hearing. The record reflects that the children’s father was provided with the necessary forms
to complete in order for the DHHS to investigate the children’s possible Native American heritage.
The referee also represented on the record that an investigation was conducted and that the children
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were found not to be Native American. Accordingly, respondent has failed to demonstrate that
the DHHS or the referee failed to comply with their statutory duties.
IV. RELATIVE PLACEMENT
Lastly, respondent argues that the DHHS and the referee erred when they did not properly
consider relative placement. MCL 722.954a(5) provides as follows:
Before determining placement of a child in its care, a supervising agency
shall give special consideration and preference to a child’s relative or relatives who
are willing to care for the child, are fit to do so, and would meet the child’s
developmental, emotional, and physical needs. The supervising agency’s
placement decision shall be made in the best interests of the child. [Emphasis
added.]
In this case, before it placed the children, the DHHS evaluated the children’s paternal
grandmother for placement and found her unfit for placement. Subsequently, although the
children’s maternal grandfather and aunt came forward as potential placements, they did not do so
until the children had been in care for considerable time and after a termination petition had been
filed. The caseworker reported that these relatives were rejected as appropriate placements. The
DHHS determined that, after that date, seeking new placement was not in the children’s best
interests. The caseworker represented that the DHHS was concerned that these relatives would
not keep the children away from their parents. Additionally, there were concerns that respondent’s
relatives had only come forward after the children had been in placement for over a year. Thus,
the record reflects that the DHHS continued efforts to seek relative placement until the children’s
goal was changed to adoption.
Moreover, respondent’s reliance on In re Mason, 486 Mich 142; 782 NW2d 748 (2010) is
misplaced. In that case, the trial court erred because it failed to consider that the children’s existing
relative placement weighed against termination. Id. at 163-164. The respondent-father in Mason
had arranged for relative placement at the beginning of that case. Id. In this case, the children
were not placed with relatives, and relatives did not come forward until after the termination
petition was filed. Accordingly, Mason does not mandate reversal in this case.
Affirmed.
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ James Robert Redford
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