in Re J Ferranti Minor

STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re FERRANTI, Minor. May 10, 2018
No. 340117; 340118
Otsego Circuit Court
Family Division
LC No. 13-000071-NA
Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.
PER CURIAM.
In these consolidated appeals, respondent-father and respondent-mother appeal as of right
the trial court’s order terminating their parental rights to their minor daughter, JF, under MCL
712A.19b(3)(c)(i) (the conditions that led to the adjudication continue to exist), and (g) (the
parent is unable to provide proper care and custody). We affirm.
JF has significant medical needs; she has spina bifida, stage 3 chronic kidney disease, and
neurogenic bladder. As a result of her medical conditions, JF has a stoma in her umbilicus to
catheterize her bladder for emptying and a stoma to flush her bowel. JF’s catheter needs to be
regularly maintained in a sanitary environment because, due to her paralysis, she would not
know if she had a urinary tract infection (UTI). To monitor JF’s condition—and to ensure that
any UTI is identified quickly—regular blood and urine tests are necessary.
On October 29, 2015, Child Protective Services (CPS) worker Amy Croff filed a petition
to remove JF from her home and place her in the care, custody, and supervision of petitioner,
Department of Health and Human Services (DHHS). At an emergency hearing held on the day
that the petition was filed, Croff testified that the original complaint concerned the conditions in
the home. Croff described the family home as very cluttered. Along with the two respondents,
JF lived with her three older siblings. The family had one cat, three kittens, and a dog. The
family lived in a mobile home, and JF usually crawled on the floor because it was difficult to
maneuver her wheelchair. According to Croff, there were cat feces on the floor of the home, a
urine smell throughout the home, and fecal matter all over the bathroom that JF shared with her
three siblings. Croff had concerns about JF crawling on the floor given the animal feces and
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urine on the floor.1 Croff also expressed concern about JF’s hygiene. When Croff met with JF at
her school, JF had grime on her chest and neck and smelled strongly of body odor and urine, and
the school told Croff that JF’s body odor was a continual problem.
Croff testified that the petition was also based on concerns that JF’s medical needs were
not being adequately addressed. Croff was informed by JF’s school that catheters were not being
provided. Croff also testified that JF had missed numerous medical appointments that were
crucial to sustaining JF’s physical health. Croff testified that JF had not seen a urologist since
November 2014—even though she was supposed to have follow-up visits every six months—and
that JF’s prescription medication had not been refilled.
According to Croff, the family had an extensive history with CPS. JF had been
previously removed from the home due to the home conditions and medical neglect in September
2013. JF was returned home in August 2014 with services put in the home for three months.
The family had previously participated in foster care services, ongoing CPS cases, CPS
investigations, had Families First and Northern Families Intervention Services (NFIS) programs
in the home, counseling service, medical transportation, food assistance, adult service assistance,
food pantry referrals, gas cards, and housing assistance.
Respondent-father testified that JF bathed every night while in his care, but, because of
the spina bifida, “she’s going to smell like urine no matter.” Croff testified, however, that when
JF was in foster care during the 2013 case, she did not have a strong urine smell about her.
Respondent-father also admitted that “we’re not the cleanest people . . . but the house gets
cleaned at least once a week.” He explained that the urine smell in JF’s bathroom was from the
Pull-Ups that she wore at night, and he denied the existence of human feces all over the
bathroom. Respondent-mother testified that JF’s bedding was washed daily. At the conclusion
of the emergency hearing, the trial court authorized DHHS to remove JF from the home, but
instructed JF’s lawyer-guardian ad litem (LGAL) to inspect the home.
At the continued hearing, JF’s LGAL informed the court that JF’s room was a “little
disheveled” and had a “little odor of urine,” but he did not see feces on the floor and overall
found the home habitable and “suitable generally.” Croff testified that the home conditions had
improved since her last visit—although it continued to have a urine odor—and that JF had a new
mattress.
The trial court indicated that it had ongoing concerns regarding JF’s medical care and that
it wanted to hear from her doctor. The court stated that “if cleanliness was the only things [sic],
we wouldn’t be [here].”
At the continued hearing, a nurse practitioner at the Pediatric Nephrology Department at
the University of Michigan testified that JF has chronic kidney disease, a neurogenic bladder,
1
According to a nurse practitioner that testified during a later hearing, JF had lab work
performed after the she was removed from respondents’ home that revealed that she had a UTI
caused by two organisms that typically inhibit the mouths of cats and dogs.
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and a current UTI, which can decrease kidney function. The nurse explained that it was
important for JF to be seen every three to four months for lab work to determine her kidney
function and to have her blood pressure, growth, and weight monitored. The nurse testified that
JF was prescribed Detrol, which is used to make catheterizing easier and help prevent infection,
but that it had not been filled since March 2015. Croff testified that it was important for JF to
keep up with her doctor appointments because JF needed regular ultrasounds to determine the
size and function of her bladder and kidneys. Croff explained that, in the past JF’s kidneys had
swollen as the result of bladder pressure from not catheterizing properly.
Respondent-father testified that he did not feel that JF needed an aide at school to assist
with catheterization and that the school had only contacted him twice for catheters.
Respondent-father also stated that, as far as he knew, JF was taking her medication. According
to respondent-father, the floors in the home were clean enough for JF to crawl and he did not
consider the floors to be a health risk to JF. Respondent-father did not believe that there was any
basis for the allegations in the petition and that he and respondent-mother were “doing their
best.”
The trial court found probable cause to continue the proceedings and set the matter for
trial. After a dispositional hearing, respondents were ordered to participate with the parent-
agency treatment plan, which required respondents to complete psychological evaluations,
provide a clean home for JF, and meet JF’s medical needs.
At a permanency planning hearing on October 18, 2016, JF’s foster care worker,
Michelle Klein, testified that she made monthly visits to respondents’ home. The latest visit was
three weeks before the hearing. Klein testified that she noticed that JF’s bedroom was clean
during that visit, but the bathroom was “deplorable,” with urine on the floor, fecal matter on the
toilet, and the shower, floor, and toilet appeared to have never been cleaned. Klein noted that JF
used that bathroom during her visits. Klein also testified that she noticed the smell of cat urine
from cats urinating on piles of clothing on the floor. According to Klein, her review of the file
showed a history of similar conditions in the home for 25 years. The previous service provider
reports stated that respondents were cooperative, but the home conditions never changed, with
reports of cat and dog feces throughout the home. Klein did not feel that respondents had made
any substantial progress on improving the conditions of the home. She testified that the
condition of the home had not changed over the course of the year, and that the last 30 days of
improvement was not enough to reconsider termination. Klein noted that conditions in the home
had improved just before JF was returned home in 2014, but then “went right back to the way
they were before.” She testified that the agency could provide no services that had not already
been provided, and recommended termination of respondents’ parental rights.
Matthew Lorence, the foster care monitor in this case until September 2015, testified in
part as follows:
There are—since 1991 have they been involved with the Agency and a repetitive
stance through all the CPS investigations is the same conditions of the home. . . .
These conditions, based on what we have is a very medically fragile child, the
home conditions have a direct bearing to her overall health. With the stage three
kidney disease, the medical treatment provided by U of M is there to—they’re
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trying to sustain it as long as possible for her, and to prevent it from occurring to
the next stage, which would then require surgery and possible transplant. They’re
trying to preserve what she has left at this time. Another thing is that from the
previous foster care case with [JF] to where we are now, the conditions, the
allegations are the same. Again, it falls back to the home condition, medical
appointments not being maintained. These are not something that can be missed.
With these appointments, you’re talking specialized medical health services and
they are required for [JF’s] care and well-being, and if these appointments are not
followed through with or maintained on the basis of the doctors and of their
recommendations, I mean, it does have an overall direct bearing and that’s why
we’re here today.
Lorence agreed with the DHHS recommendation to file a termination petition.
Respondent-father testified that he and respondent-mother were capable of taking care of
JF’s needs and that “at this moment, the house is clean enough.” He said that JF was older and
better at monitoring her medical needs. Respondent-father did not feel that it was his
responsibility to clean the bathroom, but he would make sure the bathroom stayed clean.
The LGAL stated that he visited the home the previous day and the house and bedroom
were sufficient. He said the bathroom was “minimal” and possibly was “just an older
bathroom.”
The trial court authorized the filing of a petition to terminate respondents’ parental rights.
The court informed the parties that “I suspect I’m going to want to see the house.” During a later
status conference, the trial court reaffirmed that it wanted to see the home “because that’s a
crucial issue in this case.” In February 2017, the court, along with respondents’ attorneys,
petitioner’s attorney, the LGAL, and a caseworker, visited the home.
In November 2016, the DHHS filed a supplemental petition for termination of parental
rights, and the termination hearing commenced on May 10, 2017. At the hearing, Tim Strauss, a
limited license psychologist, testified that he performed a parental fitness evaluation on each
respondent in April 2016. Strauss found it noteworthy that each respondent “had a significant
odor that filled the examination room” because people who come in for parental fitness
evaluations usually “try to put their best foot forward . . . to present themselves in the most
favorable light they can.” Strauss stated that “when both of these parents came in with the body
odor, especially when they knew the concerns were about health and physical neglect, it raises
the question about—if they can’t take care of their own health or cleanliness, it raises the
question of if they can do it for their children.” Strauss recommended that both parents work
with Families First and participate in conjoint counseling. Struass’s concern was that both
parents’ health and mood concerns would cause them to become fatigued and to anticipate that
the other parent would take care of things, and in conjoint counseling the parents could come up
with a specific list of parenting duties and develop a schedule and rhythm of routine.
Christina Pudvan, the foster care worker during the 2013-2014 case, outlined the
extensive services that were provided at the time the 2013 case was closed. Pudvan testified that
the parents received services through the Family First Support Program, NFIS, and intensive
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counseling services. Pudvan stated that she visited the family home in 2013 and found the
condition of the home to be the worst she ever saw during her career, with dirt and debris on the
floor and an odor throughout the home. During the time the 2013 case was open, JF’s medical
needs were an ongoing concern that had to be addressed constantly. After JF returned home in
August 2014, CPS received complaints in September and October 2014 because of “hygiene and
cleanliness, the medical concerns.” Pudvan had meetings at the school about cleanliness and JF
smelling of urine. When the case closed in November 2014, issues continued to exist with
hygiene and cleanliness, but the parents were meeting JF’s needs as far as attending her medical
appointments by then.
Klein testified that she prepared a parent-agency treatment plan that recommended
parenting classes and psychological evaluations for respondents. Klein testified that respondents
were initially reluctant to participate in services and, as of June 7, 2016, had not made an
appointment to begin counseling. Respondents began counseling in July 2016, but their
attendance was sporadic. According to Klein, the parents “did not feel they needed that service
or that it was going to help them,” and “[t]hey had stated that the condition of their home was not
going to change and that they did not feel they were going to live up to our expectations.”
Klein testified that she was in the home on a monthly basis and the condition of the home
varied. Klein reiterated her earlier testimony about the cluttered condition of respondents’ home,
the unsanitary condition of the bathroom, and the smell of urine in the home. According to
Klein, the home always had an odor of cat urine, but the condition of the home improved
“toward the end.” However, Klein noted that during a visit in December 2016, the condition of
the bathroom was “horrible.” According to Klein, “[t]here was dried feces, urine all on the floor,
around the toilet, on the back of the toilet seat, and [she] told [respondent-father] that was just
unacceptable,” and he “said that he did not go in that bathroom very often and he was disgusted
with that as well.” Klein did not know of any other services that could be provided that had not
already been provided.
Respondent-father testified that DHHS was involved in this case because they received
complaints that JF smelled of urine, and that she would likely always have a urine odor about her
based on the research he performed on WebMD. However, respondent-father acknowledged that
JF did not have a urine or body odor during his visitation with her while she was living with a
foster family. He testified that JF has a strong emotional bond with the family. According to
respondent-father, the family lived in a single-wide mobile home. He stated that “[w]e’re not the
perfect family” and that it was “hard to keep a lot of things clean and uncluttered due to five
people being in the home.” Respondent-father testified that it was difficult for JF to maneuver
the wheelchair in the home and her solution was to get out of the chair and crawl through the
house. He testified that he understood the importance of keeping the floor clean because of JF’s
crawling and that “lately it’s been a good cleaning once a week.” He said that his son had
purchased a “very good vacuum cleaner.” Respondent-father acknowledged that JF’s bathroom
“has been unsanitary” at times, but stated that he would clean the bathroom every day if JF was
in the home. Respondent-father’s counsel asked respondent-father if he wanted the trial court to
interview JF before making a determination on termination, and respondent-father replied, “I
would ask that, yes.”
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At the conclusion of testimony, the trial court noted that it was inclined to speak with JF
and asked if either party had an objection or opposition. Petitioner’s counsel stated that she did
not “necessarily have a problem with it,” and respondent-father’s counsel stated, “I would
actually request it . . . in this particular case because there is such a strong bond with the family,
and that bond, part of it is because of [JF’s] needs through her entire life.” Respondent-mother’s
counsel responded, “We don’t object,” and “[w]e encourage the court to talk with [JF].” The
LGAL responded, “I have no objection, your Honor, and I would just add for the record having
interviewed her [a] number of times, she is competent to do so, even though she is 13 or 14 years
old.” The court indicated that it would interview JF on July 5 before closing arguments, and it
did so.
After closing arguments, the trial court indicated that it would issue a written opinion.
The trial court eventually issued a written opinion and order terminating respondents’ parental
rights under MCL 712A.19b3(c)(i) and (g).
On appeal, respondents first argue that the plea proceeding in which the trial court
assumed jurisdiction was defective and violated their due process rights. However, respondents
waited until the conclusion of the termination hearing to challenge the propriety of the trial
court’s jurisdiction. Absent certain exceptions, a trial court’s exercise of jurisdiction over a child
must be challenged in a direct appeal from the initial dispositional order. See MCR 3.993(A)(1).2
The court’s jurisdictional decision cannot be collaterally attacked when “termination occurs
following the filing of a supplemental petition for termination after the issuance of the initial
dispositional order.” In re SLH, 277 Mich App 662, 668; 747 NW2d 547 (2008); see also In re
Hatcher, 443 Mich 426; 505 NW2d 834 (1993). Exceptions have been recognized when a trial
court exercises jurisdiction under the “one-parent doctrine,” In re Kanjia, 308 Mich App 660,
669; 866 NW2d 862 (2014), and when the trial court fails to both timely appoint counsel and “to
advise the respondent that his plea could later be used in a proceeding to terminate his parental
rights,” In re Mitchell, 485 Mich 922; 773 NW2d 663 (2009). These exceptions do not apply in
the instant case. Respondents received an adjudication and were represented by counsel, and
they could have filed a direct appeal. Because respondents cannot collaterally attack the trial
court’s exercise of jurisdiction in the instant appeal, appellate review of this claim of error is
foreclosed.
2
As relevant to this case, MCR 3.993(A)(1) provides that “an order of disposition placing a
minor under the supervision of the court or removing the minor from the home” is appealable as
of right. Respondents argue that JF was removed from the home following the initial inquiry
and, citing In re McCarrick/Lamoreaux, 307 Mich App 436, 458; 861 NW2d 303 (2014), they
argue that they did not have an appeal as of right from that order. They contend, therefore, that
this appeal is their first appeal as of right. Respondents correctly note that a parent may only
appeal as of right an order of disposition, not merely an order removing a child from the home.
Id. at 445. Thus, respondents did not have an appeal as of right from the order taking JF into
protective custody. However, they did have an appeal as of right from the initial dispositional
order, MCR 3.993(A)(1), which was eventually entered after JF’s removal.
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Next, respondents argue that the trial court erred by personally visiting and viewing their
home. Respondents failed to preserve this error, so our review is limited to whether the error
affected substantial rights. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253, 260 (2008).
“Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome
of the proceedings.” Id. at 9. While we agree that the trial court erred by personally visiting and
viewing respondents’ home, we conclude that reversal is not warranted because respondents
have not demonstrated that the error affected their substantial rights.
Given the varying descriptions of respondents’ home, the trial court informed the parties
that “I suspect I’m going to want to see the house.” The court stated that “[i]t’s not going to be
an unannounced situation.” The court stated:
Ms. Klein, I would want you there, so come testimony time you would be
able to say this is how the house looked on that day as compared to other days
when you’ve been there. You wouldn’t be able to say anything right when I
would be there, and obviously the parents would be there as well, and but that will
happen once we get a termination date scheduled and a petition filed. . . . The
attorneys would be invited for that, but I would like to see it. That would help me
in this case.
During two later hearings, the court repeated that it intended to visit the home. During the
December 6 status conference, the court stated:
What I wanted to do was see the premises. I think I remember [the LGAL’s]
report, but so I want to set up a time to view it. That would be a time when just—
since it’s part of the trial, things can’t be explained to me at that time that this is
so-and-so’s room or this is so-and-so’s room. When you get back in court, that
can happen then. You can say, you know, “When you saw this room, which was
off to the left, that’s where things are.”
During the January 10, 2017 status conference, the court stated that “I want to see it so I can—
because that’s a crucial issue in this, and just remember the ground rules.” The trial court, along
with respondents’ attorneys, petitioner’s attorney, the LGAL, and a caseworker, visited the home
in February 2017.
In the court’s opinion and order, with respect to the statutory grounds for termination, the
court summarized the witnesses’ testimony at the termination hearing and made no mention of its
observations during its visit to respondents’ home. The court found that termination of parental
rights was warranted under MCL 712A.19b(3)(c)(i) because, in part,
The conditions that led to the adjudication, lack of medical care for [JF], very
unhygienic household circumstances, and a lack of or inability to create hygienic
conditions for [JF] still exist. Given the long history, there is no reasonable
likelihood that they will be rectified any time soon.
The court also found that termination of parental rights was warranted under MCL
712A.19b(3)(g) because respondents, without regard to intent, “failed to provide proper care or
custody for [JF] for the reasons outlined [with respect to § 19b(3)(c)(i)], and there is no
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reasonable expectation that this will be corrected.” The court then found that it was in JF’s best
interests to terminate respondents’ parental rights, stating in pertinent part:
Moreover, the home environment of the parents has never been particularly clean.
The many professionals unanimously agreed that the house was unhygienic and
was probably not going to improve. It is not as atrociously bad as it was, but even
when the court viewed the situation, it is not where a person with Spinal [sic]
Bifida will thrive. [JF] chooses to crawl for locomotion when she is in the home
and the home will never be clean enough for her to avoid infections. [Emphasis
added.]
Petitioner does not appear to dispute respondents’ argument that the trial court did not
have authority to conduct a home visit to view the condition of respondents’ home. Even if it
did, such argument would be meritless. MCR 3.901(A)(1) sets forth the court rules that are
applicable to child protective proceedings. The rule pertaining to the court’s view of “property
or a place where a material event occurred,” MCR 2.507(D), is not among the rules specifically
incorporated into juvenile or child protective proceedings.3 Moreover, MCR 3.901(A)(2)
declares that “[o]ther Michigan Court Rules apply to juvenile cases in the family division of the
circuit court only when this subchapter specifically provides.” In addition, MCR 3.923(A)
provides that if the court believes that the evidence has not been fully developed, the court may
(1) examine a witness, (2) call a witness, or (3) adjourn the matter before the court, and (a) cause
service of process on additional witnesses, or (b) order production of other evidence. The rule
does not recognize a court’s authority to personally view or visit a particular place or property.
In sum, there is no statutory provision, court rule, or caselaw that permits a trial court in a
juvenile proceeding to view a child’s home.
Respondents argue that this error affected their substantial rights because the court relied
on its observations when determining that it was in JF’s best interests to terminate respondents’
parental rights. They contend that because the court did not create a record of its findings, they
did not know which findings were important to rebut and had no meaningful way to challenge
the court’s conclusion that the home “is not where a person with Spinal [sic] Bifida will thrive.”
They also contend that this Court’s review is limited by the trial court’s failure to create a record
of its findings.
However, we recognize that the trial court could have ordered the parties to introduce
photographic evidence of respondents’ home to show the condition of the home, MCR
3.923(A)(3)(b), but instead viewed the home in-person with the caveat that the parties could not
talk to the court during the visit or explain anything that the court was observing. Because
respondents and their counsel were present during the viewing and aware of what the court was
observing, and because the trial court allowed the parties to provide explanations to the court
through testimony on the record after the viewing, the court’s viewing of respondents’ home did
not violate respondents’ due process rights. Further, given the trial court’s reliance on the
3
Whether this rule would allow a trial court to view a place for the purpose of resolving a
disputed question of fact need not be considered in the context of this case.
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testimony of witnesses who described both the historical condition of the home, the services
provided, and the current condition of the home, as well as the effect of the condition of the
home on JF’s medical condition, it does not appear that the trial court’s visit to the home affected
the outcome of the proceedings. The court found that “the many professionals unanimously
agreed that the house was unhygienic and was probably not going to improve” even though the
condition of the home was “not as atrociously bad as it was.” The trial court’s lone reference to
the court’s viewing of the home was that
it is not where a person with Spinal [sic] Bifida will thrive. [JF] chooses to crawl
for locomotion when she is in the home and the home will never be clean enough
for her to avoid infections.
This finding is amply supported by the testimony of the witnesses with respect to the condition
of the home and its effect on JF’s medical condition, and the trial court’s statement regarding its
view of the home reflects that the court’s viewing of the home confirmed the witnesses’
testimony. Under these circumstances, respondents have failed to demonstrate that the trial
court’s error in visiting the home affected their substantial rights.
Respondents next challenge the trial court’s interview of JF. Respondents cite to In re
HRC, 286 Mich App 444, 453; 781 NW2d 105 (2009), in which this Court concluded that “a trial
court presiding over a juvenile proceeding has no authority to conduct in camera interviews of
the children involved” and that it was plain error for the trial court to do so. However, both
respondents consented to the interview; respondent-father’s counsel stated, “I would actually
request it,” and respondent-mother’s counsel stated, “We encourage the court to talk with [JF].”
A “[r]espondent may not assign as error on appeal something that she deemed proper in the
lower court because allowing her to do so would permit respondent to harbor error as an
appellate parachute.” In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). Because
the trial court solicited input from the parties before conducting the in camera interview and both
parties affirmatively urged the trial court to conduct the interview, respondents waived their
challenge to the court’s in camera interview of JF. Respondents’ waiver extinguished any error.
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Respondents next challenge the trial court’s determination that petitioner established
statutory grounds for termination. “To terminate parental rights, a trial court must find by clear
and convincing evidence that at least one statutory ground under MCL 712A.19b(3) has been
established.” In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013). This Court reviews for
clear error the trial court’s determination that clear and convincing evidence supports a statutory
ground for termination. In re Williams, 286 Mich App 253, 271; 779 NW2d 286 (2009). “A
finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a
mistake has been committed, giving due regard to the trial court’s special opportunity to observe
the witnesses.” In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).
The trial court terminated respondents’ parental rights pursuant to MCL
712A.19b(3)(c)(i) and (g), which authorize a court to terminate parental rights if it finds by clear
and convincing evidence that:
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(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 either
of 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.
* * *
(g) The 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.
Termination is appropriate under subsection (c)(i) when the conditions that brought the child into
foster care continue to exist “despite time to make changes and the opportunity to take advantage
of a variety of services.” In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quotation
marks and citation omitted). The statutory ground for termination under subsection (g) may be
established by a parent’s failure to participate in and benefit from services, which is evidence
that the parent will not be able to provide the child with proper care and custody. Id.Additionally, “[a] lack of cooperation with reunification services, or other court-ordered
conditions, can bear on a termination decision, if that lack of cooperation relates to issues of
abuse or neglect.” In re LaFrance, 306 Mich App 713, 729; 858 NW2d 143 (2014).
Respondents argue that the trial court clearly erred in finding that a statutory ground for
termination had been established because the testimony showed that they had made progress in
maintaining the cleanliness of their home and improved the attention they showed to JF’s
medical care and needs.4
The trial court made the following findings of fact and conclusions of law with respect to
MCL 712A.19b(3)(c)(i):
4
In arguing that the trial court erred in finding a statutory basis for termination, respondents
challenge the trial court’s finding that “many professionals unanimously agreed that
[respondents] house was unhygienic and was probably not going to improve.” However, this
finding was made in the context of the court’s best-interest determination, not in the context of
the court’s findings regarding the statutory grounds for termination. Additionally, respondents’
contention that the trial court relied on testimony from caseworkers who had not viewed
respondents’ home in years, and that the court ignored testimony regarding the condition of the
home at a point in time nearer the termination hearing, is misplaced. Rather, the trial court in its
written opinion began by summarizing the testimony of each of the witnesses that testified at the
termination hearing, and then made its findings of fact and conclusions of law.
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The initial dispositional order in this matter took place January 12, 2016,
so 182 or more days have elapsed since that time. The conditions that led to the
adjudication, lack of medical care for [JF], very unhygienic household
circumstance[s], and a lack of or inability to create hygienic conditions for [JF]
still exist. Given the long history, there is no reasonable likelihood that they will
be rectified any time soon.
With respect to MCL 712A.19b(3)(g), the court made the following finds of fact and conclusions
of law:
A second provision under which termination is sought is
MCL712A.19b3(g) [sic], which provides for termination if the parent without
regard to intent fails to provide proper care or custody for the child and there is no
reasonable expectation that it will be provided. This is similar to the first
provision. [Respondents] have failed to provide proper care or custody for [JF]
for the reasons outlined above, and there is no reasonable expectation that this
will be corrected.
Because the trial court found it appropriate to terminate respondents’ parental rights under both
MCL 712A.19b(3)(c)(i) and (g) on the basis of medical neglect and the unhygienic household
conditions, we address these provisions together.
In challenging the trial court’s findings under these provisions, respondents’ argument
first focuses on the trial court’s conclusion that they would not be able to provide a hygienic
environment in light of JF’s medical condition. They contend that they cleaned and maintained
the home and that the trial court’s finding was therefore unsupported in the record. In this case,
20 months had elapsed since JF’s removal from the home, and the overwhelming evidence
established that the main area of the home was cluttered and dirty and that JF’s bedroom and
bathroom had clutter, was dirty, was littered with feces on the floor, and smelled of cat and
human urine. The condition of the main areas of the home varied during the caseworker’s
monthly visits, but the conditions had changed only minimally by the time of the termination
hearing. It was not until petitioner requested a permanency planning hearing that respondents
first cleaned JF’s bedroom, and yet during an unannounced visit in December 2016, the
condition of JF’s bathroom was “horrible.” According to a family support worker who was in
the home weekly, respondents made progress in “picking up” the main area of the home, but JF’s
room was filled with clothing on the floor and smelled strongly of urine, and the bathroom was
very dirty with soap scum, and urine and feces on the floor and toilet. The worker informed
respondents of the necessity of having a hygienic bathroom for JF to use because of her medical
condition and that the unsanitary conditions in the home would prevent reunification with JF, but
on the last day of services in the home, the bathroom and bedroom “did not look like anything
had been done.” The unsanitary condition of respondents’ home was an ongoing issue, which
had previously prompted CPS’s involvement and JF’s removal from the home in the 2013 case.
Yet despite exhausting all available services, the problem persisted, and respondents remained
unable to provide proper care and custody for JF given her substantial medical needs. This Court
has repeatedly recognized that it is not enough to participate in services; a parent must also
benefit from the services provided in order to address the problems leading to the adjudication.
In re Frey, 297 Mich App 242, 248; 824 NW2d 569 (2012). We conclude that the trial court did
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not clearly err by finding that statutory grounds for termination under MCL 712A.19b(3)(c)(i)
and (g) were established by clear and convincing evidence.5
Lastly, respondents challenge whether termination of their parental rights was in JF’s best
interests. A trial court must order termination of a respondent’s parental rights if the court finds
by a preponderance of the evidence based on the entire record that termination is in the child’s
best interests. In re White, 303 Mich App at 713. This Court reviews the trial court’s
determination of a child’s best interests for clear error. Id.
A trial court must weigh all of the evidence in making a best-interest determination. Id.
The court may consider many factors, including “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,” as well as “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.” Id. at 713-714
(quotation marks and citation omitted).
The trial court found that termination of respondents’ parental rights was in JF’s best
interests because of the risks to JF’s health associated with the unhygienic condition of the home
and respondents’ inability to provide the care and attention that JF’s medical condition required.
Specifically, after noting that the family was intact and appeared to be close, the court found in
pertinent part as follows:
[JF’s] sister has indicated she will assist with the hygienic procedures necessary,
and her father, who is disabled but reasonably healthy, has said he will do
whatever it takes. However, throughout this case, even from its inception, this
has continued to be a problem. It gets marginally better, but then gets worse. [JF]
is becoming a young lady. While she is able to do more self-care, one of her
father’s remarks was telling. He indicated that [JF] would always have an odor.
That does not appear to be the case in her foster home, where [JF] has bonded
strongly. Moreover, the home environment of the parents has never been
particularly clean. The many professionals unanimously agreed that the house
was unhygienic and was probably not going to improve. It is not as atrociously
bad as it was, but even when the court viewed the situation, it is not where a
person with Spinal [sic] Bifida will thrive. [JF] chooses to crawl for locomotion
5
Respondents assert that they made progress with respect to JF’s medical needs. At the time JF
was removed from the home, she had not been regularly attending her necessary medical
appointments and her prescription medications had not been filled. She also suffered from a UTI
that was caused by bacteria typically found in the mouths of cats and dogs. Although
respondents attended JF’s medical appointments during the time that JF was in foster care in this
case, those appointments were scheduled by the foster parent and JF was transported to the
appointments by the foster parent. Under these circumstances, we continue to conclude that the
trial court did not clearly err by finding that clear and convincing evidence supported termination
of respondents’ parental rights under MCL 712A.19b(3)(c)(i), and (g).
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when she is in the home and the home will never be clean enough for her to avoid
infections. [JF] needs attention all the time and her family does not seem to be
able to provide it. Moreover, she has a strong bond where she currently is.
The evidence demonstrates that JF was bonded to respondents and her siblings.
Respondents were partially in compliance with their treatment plans but, despite being provided
with numerous services, did not demonstrate an ability to maintain a hygienic condition in their
home and to properly care for JF irrespective of their compliance with the treatment plan. There
is no dispute that JF requires a sanitary and hygienic area in which to catheterize and perform
bowel flushes, yet the overwhelming testimony demonstrated that the conditions of JF’s
bathroom remained “deplorable.” The past CPS involvement with respondents reveals that the
unhygienic condition of the home has been an issue for nearly 25 years and that respondents
failed to benefit from services to address this condition when JF was removed from the home in
2013. JF returned to the home in August 2014, and by September 2014 petitioner was again
receiving complaints about JF’s hygiene. The previous case was closed in November 2014, and
respondents thereafter failed to regularly refill JF’s medication and failed to take her to necessary
medical appointments. The home conditions did not improve. By October 2015, JF was again
removed from the home for the same unhygienic living conditions and medical neglect. In
addition, while in foster care, JF did not smell of urine, her medical needs and appointments
were attended, and she was bonded with her foster parent. In light of these factors, the trial court
did not clearly err when it concluded that termination of respondents’ parental rights was in JF’s
best interests.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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