Family Independence Agency v. Sours

Brickley, J. In this case, we are asked to review a decision of the Court of Appeals that reversed the probate court’s termination of the respondents’ parental rights. Because we find that the petitioner satisfied one of the statutory requirements for termination by clear and convincing evidence, we reverse the judgment of the Court of Appeals and reinstate the termination order of the probate court. i The respondents, Zellma DeCaire and James Sours, lived together for some time and had six children. On September 28, 1995, before their sixth child was bom, Sours struck both DeCaire and their eight-year old son Sean. It is not disputed that Sean was struck [626] accidentally when he put himself between his mother and his father while the two were fighting. DeCaire reported Sours’ abuse; although, about a month later, she decided not to cooperate in his prosecution and allowed him to move back into their home. At this point, the Hillsdale County Family Independence Agency (FLA.) petitioned the probate court to take jurisdiction of the couple’s five children, alleging “neglect[] and refus[al] to provide proper or necessary support,” and that their home “is an unfit place for such child [ren] to live in . . . .” MCL 712A.2(b)(l), (2); MSA 27.3178(598.2)(b)(l), (2). The petition was based on Sours’ abuse and DeCaire’s failure to protect the children from abuse, and sought the probate court’s assistance in “ensuring the] cooperation of the parents, and the safety of the Sours children . . . .” This petition did not request that the children be removed from the home. Shortly thereafter, DeCaire, Sours, and the children moved to the city of Coldwater in the adjoining county.1 The parties dispute whether Sours and DeCaire fled the county with the intent to evade the FLA. The prosecutor issued a warrant for DeCaire’s arrest because of her failure to appear at Sours’ abuse trial. DeCaire and Sours separated, and, in September 1996, DeCaire and the children moved in with her uncle in Reading, Michigan, in Hillsdale County. On September 13, 1996, the Hillsdale prosecutor filed an amended petition, again alleging abuse and failure to protect and asking that the children be removed from the home and placed in foster care. [627] The children were removed between the time this petition was filed and the time a third amended petition was filed on September 23, 1996. The third petition alleged that two of the children had severe diaper rash, and that one was severely malnourished. It also alleged that DeCaire had packed “minimal amounts of clothing” for each child upon removal, and that she had placed “age-inappropriate” candy in their bags for them. A review hearing was held in the probate court on September 30, 1996. In his October 3 post-hearing order, the probate judge found that “the minor children in this cause appear to be abused or neglected . . . .” The order did not specify the basis of this finding. The judge ordered that the children be made temporary wards of the court, that the parents maintain contact with the fia, that they immediately attend counseling, refrain from substance abuse, and look for work. On January 15, 1997, DeCaire was ordered to show cause why she should not be held in contempt for failing to follow the October 3, 1996, orders of the probate court. On February 6, 1997, the probate judge issued another order that the children remain in foster care, and that DeCaire attend parenting classes, that Sours attend substance abuse counseling, and that they both attend domestic violence counseling. Furthermore, DeCaire was ordered to seek employment and permanent housing, and to stay in contact with her fia worker. Additional orders to show cause were issued against Sours on February 24, 1997, and DeCaire on April 10, 1997, alleging various failures to comply with the court’s orders. [628] For a time, DeCaire partially complied with the court’s orders. DeCaire gave uncontradicted testimony that she obtained two jobs in January or February 1997, and held them until her sixth child was bom, in April 1997. She also attended some of the domestic violence and parenting classes that she was ordered to attend. Sours failed to attend the ordered counseling programs. He was incarcerated in Indiana in March 1996 for shoplifting and for fleeing and eluding the police; he remained in prison through the time of the termination trial. He was released in March 1998, but, in its brief to this Court, the petitioner stated that Sours is now incarcerated in Michigan — again for fleeing and eluding the police. Sours has not made any appearance before this Court. DeCaire stopped her regular contacts with the FIA when she had her sixth child. The child was bom sickly, and DeCaire was instructed to give him medication and keep him on an apnea monitor continuously, in order to assure that he kept breathing. She was also contacted by a home-care nurse who would visit her to answer any questions and to check on the baby’s health. DeCaire testified that she was terrified that the FIA would take this baby away from her, so she attempted to hide his existence from the fia workers. The fia was informed of the existence of this child by an anonymous phone call and petitioned to remove the child from DeCaire’s home, alleging that she failed to keep the child on the apnea monitor, that she missed a scheduled doctor’s appointment for him, and that she failed to give the child proper medication or allow home visits from the nurse assigned to care for [629] the child. When the fia workers came to take the child, DeCaire attempted to hide him under a blanket on a couch, where he remained without his apnea monitor until the fia workers found him approximately fifteen minutes later. The court order taking jurisdiction over this baby was entered on August 19, 1997. After the baby was taken from DeCaire on May 8, she became despondent and failed to visit any of her children until September. She testified that she turned to drink and failed to keep in touch with the FLA officials, attend her classes, or work. She failed to attend probate court hearings in her case on May 19 and June 5. She did, however, take on a new boyfriend, Matt Rowley, in May. In August 1997, DeCaire was involved in a fight between Rowley and his stepfather, in which Rowley pulled her hair. Rowley pleaded guilty of assault. The officer responding to the fight recognized DeCaire, and arrested her on a bench warrant that had been issued by the probate judge because of her nonappearance since May. She was then put in jail for contempt of the earlier court orders, and remained there from August 18 until September 3. The FLA filed a petition for termination of parental rights on September 25, 1997, alleging that DeCaire and Sours had failed to make progress in their various counseling programs, that Sours had been incarcerated and had no contact with the children, and that DeCaire had become “involved in another abusive relationship in which she was the victim in a criminal complaint.” The petition further alleged that DeCaire had intentionally hidden her youngest child from the FIA, that [630] she had failed to keep a medical appointment for this child, refused visits from a home-care nurse who was assigned to check on him, and had hidden him under a blanket when the fia workers came to remove him. Furthermore, she had failed to attend probate court hearings on May 19 and June 5, 1997, and had failed to attend a scheduled visitation with her children during this period. A termination trial was held on November 6 and 14, 1997. On November 14, the probate judge4 issued findings and an order terminating DeCaire’s and Sours’ parental rights in the six children. With respect to Sours, the judge found that he failed to attend his ordered counseling and to stay in contact with the fia. In ruling that the children were reasonably likely to be injured if returned to Sours’ custody, the judge cited his criminal background, including three assaults of DeCaire, two of other men, and one stalking of an ex-girlfriend. With respect to DeCaire, the judge stated that she first came to court “with an extremely uncooperative attitude.” She missed half the parenting classes, didn’t go to [abuse counseling] sessions, for victims, which were critical, as a battered partner. She failed to find employment, failed to find a house, failed to separate herself from the perpetrators of this abuse. Wouldn’t follow through on the visitation rules. The judge further found that DeCaire had left the jurisdiction of the court in April of 1997 and did not return until September, almost four months later. He noted that she had failed to give her youngest child his required medication, had not kept him on a sleep [631] monitor, and had hidden him under a blanket, despite his breathing difficulties. The judge further observed that “]t]he mother now has severed the relationship with Mr. Sours and has taken up plan [sic] to marry a twenty-two year old person, who’s not only extremely young, but, also has a problem with alcohol, at least from what the testimony, and also involved in abuse [sic].” The judge concluded by stating that “there’s been long term neglect and abuse, of the minor children, and it’s continued for ten years. And, that there’s been no showing of the possibility it stopping [sic].” In an unpublished, divided opinion, the Court of Appeals reversed this holding, having a “definite and firm conviction that a mistake has been made.” The majority found that DeCaire did seek employment, participate in counseling, and seek housing as she was ordered to do, though with some lapses. The majority also noted a lack of medical testimony regarding the alleged malnutrition and the clash of personalities between the lead FlA worker and DeCaire. The Court concluded, quoting the United States Supreme Court’s opinion in Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982), “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their children] does not evaporate simply because they have not been model parents or have lost temporary custody of their child[ren] to the State.” The dissenting Court of Appeals judge did not find clear error on the part of the probate judge. He based his reasoning on the trial judge’s finding that this was a “classic” situation involving an alcoholic and abusive father and a submissive mother. He noted Sours’ [632] record of violence and the fact that the family fled to avoid removal of the children. He also noted that DeCaire had packed inappropriate treats and inadequate clothes for the children when they were removed. He noted a physician’s diagnosis that one of the younger children was “severely malnourished” and a “failure to thrive” baby. The dissenting judge also relied upon DeCaire’s failure to medicate the youngest child and use the required monitor, and the fact that she had hidden the child under a blanket when the fia workers came to remove him. Furthermore, she disappeared for four months following the removal of her youngest. He noted her new boyfriend and stated that “[j]ust as she had done during her relationship with Sours, she made excuses for the boyfriend’s violent behavior and insisted that the children were not at risk.” Like the trial judge, he found this to be “ample evidence” of neglect and abuse. This Court granted leave on December 22, 1998. 459 Mich 923. n The Legislature has set forth specific conditions, at least one of which must be proven before parental rights may be terminated. After a hearing following written notice to the parents, MCL 712A.19b(2)(c); MSA 27.3178(598.19b)(2)(c), the court may terminate parental rights in the children if it finds any one of the following by clear and convincing evidence: (b) The child or a sibling of the child has suffered physical injury or physical or sexual abuse under either of the following circumstances: (i) The parent’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasona [633] ble likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home. (ii) The parent who had the opportunity to prevent the physical injury or physical or sexual abuse failed to do so and the court finds that there is a reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home. (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 age of the child. (u) Other conditions exist that cause the child to come within the jurisdiction of the court, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice, a hearing, and 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 age of the child. [MCL 712A.19b(3); MSA 27.3178(598.19b)(3).] While there are other possible bases for termination in the statute, they are not relevant in the instant case, because the fia did not give notice of them to the respondents in the petition for termination. Probate court decisions terminating parental rights are reviewed for clear error. In re Cornet, 422 Mich 274, 277-278; 373 NW2d 536 (1985). “ ‘To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong . . . People v Cheatham, 453 Mich 1, 30, n 23; 551 NW2d 355 (1996), [634] quoting Parts & Electric Motors, Inc v Sterling Electric, Inc, 866 F2d 228, 233 (CA 7, 1988). A The FIA initially became involved in this case because of the injury inflicted on the oldest child during an altercation between DeCaire and Sours. Under the statute, the fia must show that a parent “caused the physical injury or physical or sexual abuse” to the children, or that a parent “had the opportunity to prevent” such injury or abuse and failed to do so. MCL 712A.19b(3)(b)(i), (ii); MSA 27.3178(598.19b)(3)(b)(i), (ii). Furthermore, there must be a “reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home.” Id. These showings have not been made in the instant case. The evidence showed, and the trial judge found, that Sours was no longer involved with DeCaire, as of some eighteen months before the termination hearing. Therefore, DeCaire had protected the children from injury by Sours. Instead, the probate judge relied upon the fact that DeCaire has now “taken up plan [sic] to marry a twenty-two year old person, who’s not only extremely young, but, also has a problem with alcohol, at least from what the testimony, and also involved in abuse [sic].” The dissenting Court of Appeals judge stated that “she made excuses for the boyfriend’s violent behavior and insisted that the children were not at risk.” As this statute makes clear, not only does the prosecution have the burden of showing by clear and convincing evidence that the parents injured or abused the children, or failed to protect the children from [635] injury or abuse, but the prosecution must also show a “reasonable likelihood that the child will suffer injury or abuse in the foreseeable future if placed in the parent’s home.” MCL 712A.19b(3)(b)(i), (ii); MSA 27.3178(598.19b)(3)(b)(i), (ii). It is not disputed, however, that Sours was no longer involved in DeCaire’s life at the time of trial, and the only evidence before the probate court that she might expose her children to further risk of abuse was that she was now dating Matt Rowley, who had pleaded guilty of assaulting DeCaire. The evidence was not contradicted that this assault resulted when DeCaire tried to intervene in a fight between Rowley and his stepfather. No children were present at the time. The petitioner did not dispute that this was the only time that Rowley had been charged with domestic assault, nor did the fia dispute DeCaire’s claim that Rowley was successfully attending violence counseling. An ETA worker investigating the case admitted at trial that Rowley had not been investigated and that the fta knew nothing about his character or record other than the assault plea. This record cannot be construed to contain “clear and convincing” evidence of a “reasonable likelihood that the children] will suffer injury or abuse in the foreseeable future if placed in the parent’s home.” MCL 712A. 19b(3)(b) (ii); MSA 27.3178(598.19b)(3)(b)(ii). In contrast, and by way of illumination, it is not contradicted that Sours has been involved in at least five assaultive acts, three of which were domestic assaults. He has failed to attend any domestic violence counseling. He has also been jailed twice during the pendency of this case for fleeing and eluding the police. This behavior, and its [636] apparently habitual character, supports the probate judge’s finding of a reasonable likelihood that Sours could injure the children in the foreseeable future were they to be allowed into his household. It is essentially conjecture, however, to find a “reasonable likelihood” that the children at issue in this case would “suffer injury or abuse in the foreseeable future” if returned to their mother. Therefore, this Court will not sanction termination of her parental rights on this basis. B Termination is also appropriate where the children have come within the jurisdiction of the court, and, at a termination hearing at least 182 days later, the court finds that those conditions or other conditions that would bring the child within the jurisdiction of the court are continuing. MCL 712A.19b(3)(c)(i), (ii); MSA 27.3178(598.19b)(3)(c)(i), (ii). The initial requirement of this subsection is undoubtedly satisfied: On October 3, 1996, both parents were parties to an adjudication in which the probate court took jurisdiction of their children. The question is whether the conditions that led to the adjudication were continuing, or whether other conditions exist that bring the children within the jurisdiction of the court that the parents have failed to rectify after notice and a reasonable opportunity to improve. The children initially came within the jurisdiction of the court because Sours injured the oldest child and DeCaire failed to protect the children from Sours’ abuse. As discussed above, DeCaire had taken steps to protect her children from abuse long before trial [637] by separating herself from Sours. The HA has not presented clear and convincing evidence that there is a reasonable likelihood that the children will suffer injury or abuse if returned to their mother’s home. For these reasons, the conditions that led to the adjudication no longer existed at the time of trial, and it was not proper to terminate DeCaire’s parental rights under the first part of this subsection. MCL 712A. 19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i). This does not end our inquiry, however. Under the second part of this subsection, parental rights may be terminated if [o]ther conditions exist that cause the child to come within the jurisdiction of the court, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice, a hearing, and 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 age of the child. [MCL 712A.19b(3Xc)(ii); MSA 27.3178(598.19b)(3)(c)(ii).[ The various petitions filed against DeCaire before the termination petition allege neglect in the following particulars: that she failed to provide proper nutrition to the extent that one child was “severely malnourished” and underdeveloped; that she failed to attend to the children’s hygiene; that she failed to enroll in and attend her various counseling sessions, and failed to secure housing and a job; that she failed to attend a probate court hearing in her case; and that she did not properly administer medical care to her youngest child, failed to show up for medical appointments for the child or permit a home-care nurse to care for the child. [638] Because she did not have custody of any of her children after the youngest was removed, after that point, DeCaire’s parental fitness could only be judged in other ways: her attendance at court-ordered parenting and abuse classes, her continued contact with her children and ETA workers, her obtaining housing and a job, and her attendance at court hearings regarding her case. But the evidence presented regarding her parenting of the youngest child before his removal, as well as her efforts to mitigate the circumstances that caused the removal of her children, was mixed at best. She claimed that she had completed or was completing the required parenting and abuse classes and that she had found a home that was almost ready for occupancy at the time of trial. She claimed that she had secured a job pending passing a drug test. The eta’s witnesses at trial did not contradict her claims about almost having obtained housing and a job. They did, however, dispute her claims regarding her attendance at and participation in parenting and domestic violence classes. In addition, there was testimony that DeCaire failed to meet many basic parenting responsibilities, as well as those responsibilities required of her by the court and the eta. In a number of significant ways, she did not properly care for her youngest child: she failed to keep a medical appointment, utilize the services of a home-care nurse, and properly medicate the child or use the required apnea monitor.2 She hid the sickly [639] child under a blanket for fifteen minutes without the apnea monitor attached. Most significantly, after the removal of her youngest, she admitted not making any contact with her children, the fia, or the court from May until August or September of 1997, and stated that she “turned to alcohol” during this period.3 This evidence is sufficient to support the probate judge’s finding of neglect under the statute. MCL 712A. 19b(3)(c)(ii); MSA 27.3178(598.19b)(3)(c)(n). DeCaire had been put on notice in two separate petitions, dated September 23, 1996, and May 7, 1997, that she had neglected her children in a number of particular ways. After court hearings on October 3, 1996, and February 6, 1997, she had been ordered to stay in contact with the FIA workers and attend parenting classes that would have helped her rectify this continuing neglect. The probate judge specifically found, however, that she had neglected and endangered her youngest child by failing to attend to his medical care and by hiding him under a blanket while knowing about his breathing difficulties. DeCaire failed to attend two probate court hearings regarding whether this ongoing neglect had been rectified. [640] Thus, it is clear that DeCaire failed to ameliorate her neglect of her children, despite a reasonable opportunity to do so after she had received notice of the problem and been afforded hearings regarding it. Indeed, after her youngest was removed, DeCaire’s failure to mitigate her neglect worsened into outright abandonment. She made no contact with the court, the fia, or her children until four months later when she was returned to the court pursuant to a bench warrant. The probate judge found that DeCaire had been given notice, repeatedly, of the programs she would have to participate in and the changes that she would have to make in order to have her children returned to her. He found that she had neglected to properly care for her youngest child and then disappeared for four months. The court concluded that “there’s been long term neglect and abuse, of the minor children, and it’s continued for ten years. And . . . there’s been no showing of the possibility [of] it stopping.”4 These findings, supported by clear and convincing evidence in the record, are sufficient to sustain an [641] order of termination under MCL 712A.19b(3)(c)(ii); MSA 27.3178(598.19b)(3)(c)(ii). m Because we hold that at least one of the statutory bases for termination is supported in the record by clear and convincing evidence regarding each of the respondents, we reverse the judgment of the Court of Appeals, and reinstate the probate court’s termination of the respondents’ parental rights. Weaver, C.J., and Taylor, Corrigan, and Young, JJ., concurred with Brickley, J. Footnotes [1] An ha worker stated that an order for removal was obtained by the ha on November 3, 1995. There is no indication of this on the probate court docket, however, nor is a copy of this order a part of the record. [2] While much of the admitted evidence regarding use of medications and the apnea monitor was hearsay, the attorney for the respondent failed to lodge an objection to the admission of this evidence. We further note that the nurse who discharged the respondent’s baby from the hospital [639] gave competent testimony at trial that the apnea monitor was to be on the baby “continuously.” [3] Had it been pleaded in the petition for termination, DeCaire’s disappearance between May and August of 1997 would constitute an independent ground for termination pursuant to MCL 712A19b(3)(a)(ii); MSA 27.3178(598.19b)(3)(a)(n). The fact that abandonment was not pleaded as an independent ground for termination does not mean, however, that the probate judge may not rely on the abandonment as evidence of ongoing neglect under MCL 712A19b(3)(c)(ii); MSA 27.3178(598.19b)(3)(c)(n). Indeed, where the other requirements of this subsection are satisfied, such evidence is highly probative of an inability or unwillingness to properly care for the children in question. [4] The factual finding that the “neglect and abuse” had continued for “ten years” is clearly erroneous on the basis of the record. The oldest child was only nine years old at the time of the trial, and no evidence was submitted of neglect or abuse before this child’s injury at the hands of his father on September 28, 1995, a little more than two years before the trial. This error does not, however, alter our conclusion that petitioner adduced sufficient evidence of neglect to satisfy the statutory requirements for termination. Thus, this Court will not disturb the probate court’s ruling, though it was partially based on an erroneous finding of fact.