In Re webb/shearer Minors ( 2023 )

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UNPUBLISHED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 WEBB/SHEARER, Minors. October 26, 2023
No. 365347
Mecosta Circuit Court
Family Division
LC No. 20-006653-NA
Before: RICK, P.J., and SHAPIRO and YATES, JJ.
PER CURIAM.
Mother appeals as of right an order terminating her parental rights to five children under
MCL 712A.19b(3)(c)(i) (failure to rectify conditions leading to adjudication), (c)(ii) (failure to
rectify other conditions), and (j) (likelihood of harm if children returned to parent). On appeal,
she argues that no statutory grounds for termination existed and that the trial court erred in its best-
interests decision. We affirm.
I. FACTUAL BACKGROUND
Mother has a history with Children’s Protective Services (CPS) extending back to 2017.
The current proceedings initially began with a petition being filed in relation to the father of the
four youngest children,1 who was accused of sexually abusing two of those children. All five
children were initially placed with mother and her husband. The children were removed, however,
when it came to light that they had been living in deplorable conditions. A petition filed in this
case noted that the children were filthy and were not being fed regularly, and that there was a lock
on the refrigerator door. Testimony from the termination hearing indicated that the children
sometimes resorted to eating out of the garbage. The children told CPS workers that their
stepfather hit them with his hand or with a paddle. The children had access to lighters, which were
kept in mother’s purse, and would burn each other with them. In addition, one of the children had
a severely infected injury on his foot, for which mother had not sought medical attention. This
child had also nearly been hit by a car while being supervised by mother. None of the children
1
The oldest child has a different father, who was not involved in the instant proceedings. The
father of the four youngest children relinquished his parental rights to them.
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attended school regularly. When the children were removed from mother’s custody and
temporarily placed in foster care, it was discovered that the children needed help with things such
as learning how to use the bathroom inside and how to wear clothes and shoes for extended periods.
Regarding the conditions of the home, witnesses described the home as unusually
deplorable and dangerous, with upturned, exposed nails and other hazards immediately accessible
by the children. The petition noted that the home was “[e]xtremely dirty with food residue and
trash strewn throughout . . . as well as alcohol bottles in [mother and stepfather]’s bedroom.”
Dirty laundry was left in a large pile, and mother had no clean clothing or bedding for the children.
After many months of services, mother had still not learned how to safely supervise the children.
She had a job and sufficient income, but was still finding it difficult to provide food for visitations
and had still not obtained proper housing. As a result, the court terminated her parental rights.
This appeal followed.
II. ANALYSIS
A. STATUTORY GROUNDS
Mother contends that petitioner, the Department of Health and Human Services (DHHS),
did not adequately prove any grounds for termination and that certain reunification efforts were
inadequate. We disagree.
To terminate parental rights, the trial court must initially find, by clear and convincing
evidence, a statutory ground for termination, MCL 712A.19b(3). This Court reviews for clear
error the trial court’s factual findings and its ultimate determination that a statutory ground has
been established. In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). A reasonable-efforts
finding is also reviewed for clear error. In re Sanborn, 337 Mich App 252, 258; 976 NW2d 44(2021). A finding is clearly erroneous if, even if some evidence supports it, the reviewing court is
nevertheless left with the firm and definite conviction that the lower court made a mistake. In re
Mason, 486 Mich at 152.
MCL 712A.19b(3) states, in relevant part:
The court may terminate a parent’s parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
***
(c) The parent was a respondent in a proceeding brought under this chapter,
182 or more days have elapsed since the issuance of an initial dispositional order,
and the court, by clear and convincing evidence, finds . . . the following:
(i) The 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.
(ii) Other conditions exist that cause the child to come within the court’s
jurisdiction, the parent has received recommendations to rectify those conditions,
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the conditions have not been rectified by the parent after the parent has received
notice and a hearing and has been given a reasonable opportunity to rectify the
conditions, and there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
***
(j) There is a reasonable likelihood, based on the conduct or capacity of the
child’s parent, that the child will be harmed if he or she is returned to the home of
the parent.
Mother first contends that the trial court erred by finding that adequate housing remained
a barrier because she had made improvements to the home that she and her husband were evidently
in the process of purchasing. The record indicates that as of June 2022, the furnace in the home
was not functional. A county building official had listed a great number of things that needed to
be fixed or installed for the house to have a certificate of habitability. As of August 29, 2022, the
home had a functional refrigerator and shower but it was still not habitable because it still had no
heat source. There was no official approval for occupancy, and the children’s caseworker, Kim
Gager, was concerned about the wiring in the house, as a number of devices and appliances were
plugged in via a single long extension cord. Gager stated that she had been “willing and able to
provide assistance if [mother] needed it” but that mother always said she was about to move into
a new home and did not need help. It seemed to Gager that mother was focused on having a single-
family home and did not want an apartment or mobile home. Mother admitted that she did not ask
DHHS for any help with housing. She also admitted that the heat for her home was “still getting
there,” but she said that she had purchased a furnace. The termination hearing was set to take
place in November in Michigan, and the home still had no heat source. Given the above testimony,
we conclude that the trial court did not err in finding that issues with adequate housing continued
to exist.
Mother next contends that the trial court erred by concluding that she had not rectified her
issues with properly parenting and supervising the children. She argues that her poor reports from
parenting time were a result of the fact that visitations occurred outside, in a park, where it was
difficult to control the children. But contrary to mother’s argument, only a portion of the visitations
occurred in a park, and the record indicates that even when parenting time took place indoors,
mother struggled to manage and properly parent the children. Thus, the trial court did not err by
finding that mother had failed to make progress toward improving her parenting skills.
Relatedly, mother raises an argument about the adequacy of parenting-time services.
Unless there are certain aggravated circumstances, “[u]nder Michigan’s Probate Code, [DHHS]
has an affirmative duty to make reasonable efforts to reunify a family before seeking termination
of parental rights.” In re Hicks/Brown, 500 Mich 79, 85; 893 NW2d 637 (2017); see also In re
Rippy, 330 Mich App 350, 355; 948 NW2d 131 (2019). Mother contends that the services offered
by DHHS to help improve her parenting skills must have been unreasonable because they were
not working. This is not a logical argument. That the services were not working does not mean
that they were unreasonable. A Family Supportive Services (FSS) worker, Jessica Deverman,
testified that she tailored the educational portions of visitations to mother’s needs by meeting with
her without the children present, and by offering very specific feedback to help mother learn
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parenting skills. Deverman said that her organization also tried to work with mother’s therapist to
try to get mother to understand that she needed to improve her parenting skills. Another FSS
worker spoke about trying different techniques “to see what worked for the family.” Thus,
mother’s argument on this point lacks merit.
Mother also contends that she was making sufficient progress, such that the court should
have found that conditions leading to adjudication were likely to be rectified in a short amount of
time. The record does not support this argument. Deverman stated that mother improved at times
but did not have sustained progress during visitations. Mother would focus on complaining about
her ailments or things going wrong at her job instead of focusing on the children. Deverman said
that “our workers [were] having to parent the parents,” that is, mother and her husband, in an
attempt to keep the children safe. She spoke about how one child had been “lost” during visitations
and how mother had denied it having been an issue. On another occasion, when one of the children
fell and hurt her arm, mother just walked away, stating that she was overwhelmed. Deverman said
that there was a continuous theme of “absolutely unresolved trauma” and that mother took no
responsibility for what the children had gone through. She said that mother could not even meet
the first parenting “benchmark” of being “present” and “in the moment enough to even know what
was going on.” Two workers were needed in order to ensure the children’s safety during
visitations.
Two more FSS workers aside from Deverman agreed that mother did not show sustained
benefits from parenting education services, and that her parenting skills had not consistently
improved. For example, while a therapist was present, mother was attentive to some of the
children, but when the therapist left, mother would disengage. The therapist of one of the children
echoed what others had said about mother doing well for a time and then having setbacks with her
emotional regulation and ability to interact with the children. The therapist reported that mother
seemed to lack an understanding of the trauma the children had experienced. In addition, mother
failed to follow through with scheduling appointments to discuss the children. Mother appeared
wholly uninvested in the “homework” portion of the parenting education and refused to engage in
counseling. One of the FSS workers reported that mother was not “a fan of counseling” and did
not “feel that it was helpful.”
In sum, ample evidence was presented indicating that mother either failed to engage in
services altogether, or engaged in services and failed to benefit. See In re Sanborn, 337 Mich App
at 275 (noting that to be successful, a respondent must not just participate in services but must also
benefit from them). On this record, the trial court did not clearly err by finding that mother’s issues
with parenting, housing, and emotional regulation were not likely to be rectified within a
reasonable time considering the children’s ages. See MCL 712A.19b(3)(c)(i).
Mother next contends that the court erred by relying on MCL 712A.19b(3)(c)(ii) because
no new conditions were at issue.2 The court referred to “resource availability” as an issue that was
2
Since we have concluded that termination was appropriate under MCL 712A.19b(3)(c)(i), we
need not address the additional statutory grounds because only one statutory ground for
termination of parental rights must be established. See In re HRC, 286 Mich App 444, 461; 781
NW2d 105 (2009). However, we do so here for the sake of thoroughness.
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mentioned in September 2021, and which became a barrier in the case. It appears that this was an
issue from the beginning, given the issue of lack of food mentioned at adjudication. Related to the
resource-availability issue, mother contends that the trial court erred by finding that mother had
trouble providing meals for the children. But one of the FSS workers testified that she was
concerned about mother’s ability to feed the children because she had expressed on multiple
occasions that she had no money for food and had obtained food for her parenting-time visits from
friends. The worker was concerned that mother would not be able to provide food for the children
on a daily basis, particularly given that she already struggled to obtain food for parenting-time
visits without help. Another FSS worker said that mother was initially bringing food for the
children consistently but had lately said she lacked the money to do so. This was despite the fact
that mother had a job and had worked out a budget with Gager that should have been sufficient to
cover the cost of food for the children. On this record, no error is apparent with regard to the trial
court’s discussion of the children’s meals.3
Mother finally contends that there was no evidence that the children would be harmed if
returned to her care. See MCL 712A.19b(3)(j). We disagree. Mother had not resolved the many
issues that brought the children into care. If the children were returned to her, they are likely to
end up in the same deplorable and unsafe conditions that led to their removal. Also, we note that
subsection (j) encompasses emotional harm. In re Hudson, 294 Mich App 261, 268; 817 NW2d
115 (2011). The record clearly indicates that mother never took responsibility for any of the
children’s trauma. Mother refused to contend with the fact that at least two of the children had
accused their stepfather of sexual abuse, going so far as to express regret over reporting the sexual
abuse to one DHHS worker. At the time of the termination hearing, mother was still expressing a
reluctance to admit that counseling was something the children needed. Based on our review of
the record, the trial court did not clearly err in its analysis of MCL 712A.19b(3)(j). Accordingly,
for all of the foregoing reasons, statutory grounds were established to support the termination of
mother’s parental rights.
B. BEST INTERESTS
Mother next argues that the trial court erred by finding that termination was in the
children’s best interests. We disagree.
This Court reviews for clear error a lower court’s decision that termination is in a child’s
best interests. In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). “If a trial court
finds that a statutory basis for terminating parental rights exists by clear and convincing evidence,
it is required to terminate parental rights if it finds from a preponderance of evidence on the whole
record that termination is in the children’s best interests.” In re Brown/Kindle/Muhammad, 305
Mich App 623, 637; 853 NW2d 459 (2014) (quotation marks and citation omitted); see also
MCL 712A.19b(5). In making its best-interests determination,
3
Contrary to mother’s implication, the court explicitly stated that it was not taking into account
anything about mother’s ability to purchase food at Burger King; it noted that feeding children at
Burger King would be prohibitively expensive.
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[t]he trial court should weigh all the evidence available to determine the
children’s best interests. To determine whether termination of parental rights is in
a child’s best interests, the court should consider a wide variety of factors that may
include the child’s bond to the parent, the parent’s parenting ability, the child’s need
for permanency, stability, and finality, and the advantages of a foster home over the
parent’s home. The trial court may also consider a parent’s history of domestic
violence, the parent’s compliance with his or her case service plan, the parent’s
visitation history with the child, the children’s well-being while in care, and the
possibility of adoption. [In re White, 303 Mich App 701, 713-714; 846 NW2d 61(2014) (quotation marks and citations omitted).]
The trial court’s conclusion about the children’s best interests has ample support in the
evidence. As noted in our discussion of the trial court’s statutory-basis determination, mother
stopped her own counseling, took no accountability for what the children had gone through, and
had expressed the belief that counseling would not be helpful for the children. The children each
had experienced severe trauma, abuse, and in the case of two children, sexual assault. In addition,
mother had not shown a sustained benefit in her parenting and supervision skills and did not
manage her budget carefully enough to have sufficient money for food. This was a case in which
a child was nearly hit by a speeding car, in which children had been burning each other with
lighters, in which the children had not been attending school regularly, in which the children were
not being fed, and in which a child had a severe foot infection that was ignored by mother. The
oldest child expressed that reunification was unwise unless mother became “a better mom” and
became less “angry.”
Deverman said that the children were flourishing in their placements 4 and were “talking
about how they don’t want to go back with” mother. Deverman said that the children would behave
in foster care but act rambunctious in an excessive way, unlike typical cases, during visitations.
She said that the children had been almost feral when living with mother but had responded to
limits placed by the foster parents. Gager said that the children were “very” bonded to their foster
parents. The children were doing well in school, and one child in particular had shown vast
improvement in behavior in the prior year. Gager said that “the foster parents are both willing to
adopt the children that they currently have placed with them as well as adopting all of the five
children if necessary.”
The foster mother of the two youngest children said that, at first, they had had no self-
regulation skills and many issues with food. She said that they had improved a lot and could now
“calm themselves much easier.” One of them would regularly have bathroom accidents after
visitations with mother. Those accidents stopped after visitations with mother stopped.
The foster parent for the other three children spoke about how the behaviors of the two
middle children had improved after they got IEPs (individualized educational programs). Mother
did not attend IEP meetings and had expressed little interest in attending the children’s medical
appointments. The foster mother said that the children had acted like they were starving, had
4
At the time of the termination hearing, three children were placed in one foster home and two in
another.
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fought over food, and were “constantly wanting something to eat,” but that this behavior had
subsided because they now knew food was consistently available. She said that if she ended up
with only the three oldest children, she would be willing to facilitate the sibling relationships
between them and the two youngest.
Thus, all of the available evidence supports the trial court’s best-interests decision. Even
so, mother contends that the court failed to consider each child individually. “[I]f the best interests
of the individual children significantly differ, the trial court should address those differences when
making its determination of the children’s best interests.” In re White, 303 Mich App at 715
(emphasis in original). Contrary to mother’s argument, the court stated that it had “considered
each child individually and [had] concluded that the analysis is the same, or substantially similar
for each child.” The court did note that there were some differences, mainly with regard to each
child’s bond with mother. But the bulk of the court’s analysis involved issues that applied to all
the children; indeed, mother’s inability to properly supervise, nurture, and provide for her children
applied to all five of them.
Mother also contends that the court erred by stating that the children had a stable
environment currently because there have been changes in their foster care environments. But the
court explained, “From the sexual abuse to the lack of housing, to the running feral, foster care is
the closest thing they’ve ever had to stability.” The court’s point was that the children’s needs
were finally being met. There is no error in the way the court compared the foster environment to
the potential placement with mother.
Mother also contends that the children should have been placed with their maternal
grandfather and his wife.5 She appears to be making an unpreserved guardianship argument. To
that end, we note that this placement was given a trial run, and a decision was later made that
placement of the children with their maternal grandfather was not appropriate because of a lack of
timely reporting of issues to DHHS and a violation of a safety plan. In addition, no argument
about guardianships or alternative placements was made at the conclusion of the termination
hearing. As such, mother has not established plain error warranting appellate relief.6
5
Mother contends that the court should have looked into a placement with a friend who could have
taken all the children into temporary custody. When mother mentioned this friend, the court
responded that DHHS’s procedures would be followed. The issue was not developed any further.
No error is apparent from the record.
6
Unpreserved issues are analyzed under the plain-error doctrine. In re Utrera, 281 Mich App 1,
8-9; 761 NW2d 253 (2008). Under this doctrine, for reversal to be warranted, a respondent must
establish that (1) an error occurred; (2) the error was plain, i.e., clear or obvious; and (3) the plain
error affected his or her substantial rights, i.e., affected the outcome of the proceedings. Id. at 9;
In re Ferranti, 504 Mich 1, 29; 934 NW2d 610 (2019). Additionally, the error must have
“seriously affect[ed] the fairness, integrity or public reputation” of judicial proceedings. In re
Utrera, 281 Mich App at 9 (quotation marks and citations omitted; alteration in original).
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III. CONCLUSION
Mother has failed to show that the trial court erred by finding that statutory grounds existed
to support termination of her parental rights, and that termination was in the children’s best
interests.
Affirmed.
/s/ Michelle M. Rick
/s/ Douglas B. Shapiro
/s/ Christopher P. Yates
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