In re Gach

• Decision Date: 19 April 2016
• Docket Number: Docket No. 328714.
• Parties: In re GACH.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 83

889 N.W.2d 707

In re GACH.

Docket No. 328714.

Court of Appeals of Michigan.

Submitted April 5, 2016, at Lansing.

Decided April 19, 2016, at 9:00 a.m.

William J. Vailliencourt, Jr., Prosecuting Attorney, and Marilyn S. Bradford, Assistant Prosecuting Attorney, for petitioner.

Child Welfare Appellate Clinic (by Vivek S. Sankaran and Shannon Seiferth (under MCR 8.120(D)(3))) for respondent.

Honigman Miller Schwartz and Cohn LLP, Grand Rapids (by Robert M. Riley, Andrew M. Pauwels, and Sarah E. Waidelich ) for Legal Services Association of Michigan, Amici Curiae.

Michigan Poverty Law Program (by Rebecca E. Shiemke) for Michigan Coalition to End Domestic and Sexual Violence, Amici Curiae.

Before: BOONSTRA, P.J., and WILDER and METER, JJ.

Opinion of the Court

BOONSTRA, P.J.

Respondent appeals by right the trial court's July 23, 2015 order terminating her parental rights to the minor child, DG, under MCL 712A.19b(3)(g) (failure to provide proper care and custody), (i) (parental rights to a sibling of the child have been terminated as a result of abuse or neglect), (j) (child will likely be harmed if returned), and (l ) (rights to another child were terminated under the juvenile code). We reverse and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Respondent is the mother of DG.¹ This case arose when DG was found wandering outdoors while unsupervised and wearing a diaper and a T-shirt. DG was three years old at the time. The initial petition included the following allegations:

A referral was received on 08/02/2014 alleging minor child [DG] was found outside around noon in the neighbor's front yard and his front yard in just a t-shirt and diaper with 2 dogs. He was also at the park across the street playing. His diaper was soaked with urine and feces seeping out onto his legs. No one was around, supervising the child. The police were contacted and when they arrived at [respondent's home] no one responded. The police were yelling and banging on the doors. The garage door to the home was unlocked and appears to be the door that [DG] got out of. The police went inside yelling, screaming, and banging in the home for a few minutes before respondent ... and [MC] (half sister ...) finally got up and came downstairs. There was no one else in the home.... The home was dirty, all of the carpet has been removed, and floor boards are exposed. The couch has a huge rip in it.... There is dirt and grime all in the home.

The petition further recited that respondent "has three prior terminations through Wayne County" and additionally reported that a child of respondent's had died in 2001 with suspicious injuries. The petition provided that as a result of this suspicious death, "[t]he father, Jose Baker[,] was convicted and sentenced to prison"² and that respondent "was charged with Felony Homicide but not convicted." The initial petition requested termination of respondent's parental rights to DG.

The trial court authorized the petition on August 5, 2014, placed DG in a nonrelative foster home, and ordered that parenting time be suspended. On November 7, 2014, respondent pleaded to the trial court's jurisdiction. Due to a series of delays, the termination hearing was not held until February 3, 2015, and did not conclude until July 23, 2015. Respondent received no parenting time with DG during this span of time.

At the termination hearing, respondent testified that Baker was the father of three of her five children, including the child who had died and two of the three children to which her parental rights had been terminated. Respondent testified that Baker was not the father of DG and that DG had been conceived after a one-time sexual encounter. Respondent further testified that Baker had pleaded guilty in connection with the death of their minor child and began a term of incarceration in 2007, although she insisted that the child "was not killed," but rather "died from neubronchial [sic] pneumonia

." Respondent testified that she had not seen Baker since she had visited him while he was incarcerated, which was before she learned that she was pregnant with DG. In other words, she had not seen Baker for at least four years. Respondent denied that Baker knew where she lived, and she also testified that she had no intention of contacting him because she believed that he posed a risk to her children. Respondent further testified that she had served as a court-appointed guardian to her juvenile nephew from when he was age 14 until he moved out in 2012 or 2013 at the age of 19. Respondent's nephew confirmed this testimony and additionally testified that he had neither seen Baker nor heard respondent speak of him while living with her.

Felicity Gach, age 19, testified that she was respondent's daughter (to whom respondent's parental rights had previously been terminated), that she was in daily contact with respondent, and that she had neither seen Baker nor heard respondent speak of him in the previous year. Kevin Casey, respondent's brother, testified similarly, and he additionally opined that DG was well-cared for by respondent.

Melinda Chamberlain, the Child Protective Services (CPS) worker who signed the petition requesting termination, testified that when DG was born, her agency was notified of a "birth match" as a result of respondent's previous terminations of parental rights and subsequently conducted an investigation. Chamberlain testified that, following the investigation, her agency's report concluded that no relationship existed between respondent and Baker and that the agency had no concerns warranting further investigation.

Regarding the incident giving rise to the initial petition, James Michael Damman, a special education teacher, testified that on August 2, 2014, he was at West Street Park in Howell with his family. He testified that he saw a little boy, between two and three years old, wearing only a diaper and accompanied by two puppies and no adults. Damman approached the child, who pointed to where he lived. Damman knocked on the door but received no response. Damman observed that the child's diaper was soiled with feces, that it was running down his legs, and that some had dried on his upper thigh area. After trying and failing to get a response at some neighboring houses, he called the police, who were able to successfully rouse respondent.

Respondent testified that she did not hear DG get up in the morning when he wandered out on his own. She stated that, the night before, after a long day at work, she went to sleep at 1:00 a.m., then arose at 4:00 a.m. to assist her daughter with her job, and finally returned home between 6:45 a.m. and 7:00 a.m. feeling "over exhausted." She further testified that DG had had a change of diaper before going to bed the night before and that he was sometimes "saturated" when he woke up in the morning. She testified that after the police brought DG home, she changed his diaper and talked to DG, who "basically told us that he wanted to be a big boy and let the dogs out." Respondent also testified that, at that time, the carpet in her house had been removed because she was in the process of putting in a new floor in response to some water damage.

MC, a minor, testified that she was the child of Baker and respondent, but that she had been adopted by her maternal grandmother. She testified that the night before DG was found outside unsupervised, respondent had left the house to help Felicity with her work, leaving MC to babysit DG. She further testified that DG did not normally walk around with heavily soiled diapers, that he was generally clean, and that he had never left the house unsupervised before. Respondent's maternal grandmother testified similarly regarding DG's cleanliness and supervision.

DG's pediatrician testified that respondent was generally current with appointments for DG; while respondent had missed one appointment at 15 months, this was not necessarily "atypical" for patients.

Angela Tisch, a protective-services worker with petitioner, testified that she and Chamberlain, accompanied by police, appeared for a check of the home two days after the incident in which DG had been found unsupervised. Tisch testified that respondent took a long time to answer the door and did not allow them access to the home. Tisch testified that respondent told them that DG was with a friend of the family and that a friend of the family brought DG home about an hour after they arrived. Tisch testified that respondent told her that she was employed, but would not name her employer, and that she had a medical marijuana card, which she would not produce. Tisch testified that respondent told her that there were five pit bulls living in the home, although Tisch only saw two, which were barking at the front window. Tisch further testified that respondent indicated that she was aware that Baker had been released from prison and reiterated that she did not believe Baker was responsible for the child's death, which she attributed to "pneumonia

" or "something about infantigo on his lip or something." Tisch stated that respondent told them that Baker had been trying to contact her constantly since his release from prison, but Tisch did not remember if respondent stated that she had a relationship of any kind with Baker at the time. Tisch testified that police officers removed DG from the home because they deemed the environment unsafe. Tisch indicated that this was partially due to respondent's evasive answers and refusal to allow them to view the home.

Chamberlain testified that were it not for the earlier terminations, respondent would likely have been offered services in connection with the instant case. Chamberlain agreed that respondent would possibly benefit from services if given an opportunity, but she added that her agency was "not allowed" to take that approach "due to state policy." Chamberlain further agreed that but for the earlier terminations, there probably would have...